George Orwell once noted that when an English politician dies “his worst enemies will stand up on the floor of the House and utter pious lies in his honour.” Antonin Scalia was neither English, nor technically speaking a politician, but a similar tradition can be witnessed in the form of the praise now being heaped on him.
For example prominent liberal legal academic and former Obama administration lawyer Cass Sunstein has just offered the opinion that Scalia “was not only one of the most important justices in the nation’s history, he was also among the greatest.” Scalia’s greatness, Sunstein claims, “lies in his abiding commitment to one ideal above any other: the rule of law.”
Sunstein’s assessment strikes me as not merely wrong, but as the precise opposite of the truth. Scalia was not a great judge: he was a bad one. And his badness consisted precisely in his contempt for the rule of law, if by “the rule of law” one means the consistent application of legal principles, without regard to the political consequences of applying those principles in a consistent way.
One of Scalia’s many obnoxious qualities as a jurist was his remarkably pompous, pedantic, and obsessive insistence that the legal principles he (supposedly) preferred – textualism in statutory interpretation, originalism when reading the Constitution, and judicial restraint when dealing with democratically-enacted legal rules – were not merely his preferences, but simply “the law.”
Given that those principles are and always have been controversial among American judges, lawyers, and politicians, insisting that they ought to control judicial interpretation as a matter of definition makes about as much sense as arguing for the desirability of, say, a particular income tax rate by claiming that the advocate’s preferred rate simply is the “true” rate (in other words it’s a nonsensical argument on its face).
But this kind of question-begging nonsense was the least of Scalia’s judicial faults. For the truth is that, far more than the average judge, Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law. Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute.
I will give just three out of many possible examples. In affirmative action cases, Scalia insisted over and over again that the 14th Amendment required the government to follow color-blind policies. There is no basis for this claim in either the text or history of the amendment. Indeed Scalia simply ignored a rich historical record that reveals, among other things, that at the time the amendment was ratified, the federal government passed several laws granting special benefits to African-Americans, and only African-Americans.
No honest originalist reading of the Constitution would conclude that it prohibits affirmative action programs, but Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.
Similarly, the men who drafted and ratified the First Amendment would, it’s safe to say, been shocked out of their wits if someone had told them they were granting the same free speech rights to corporations they were giving to persons. Again as a historical matter, this idea is an almost wholly modern invention: indeed it would be hard to come up with a purer example of treating the Constitution as a “living document,” the meaning of which changes as social circumstances change. In other words, it would be difficult to formulate a clearer violation of Scalia’s claim that the Constitution should be treated as if it is “dead dead dead.”
Finally, and most disgracefully, Justice Scalia played a key role in the judicial theft of the 2000 presidential election. He was one of five justices who didn’t bother to come up with something resembling a coherent legal argument for intervening in Florida’s electoral process. A bare majority of the Court handed the election to George W. Bush, and the judges making up that majority did so while trampling on the precise legal principles Justice Scalia, in particular, claimed to hold so dear: judicial restraint, originalist interpretation, and respect for states’ rights.
These examples are not rare deviations from an otherwise principled adherence to Scalia’s own conception of the rule of law: they were the standard operating procedure for the most over-rated justice in the history of the United States Supreme Court.