Eric Segall on Justice Scalia’s “Snake Oil Originalism" (with my comments)
Eric Segall at Dorf on Law: Supreme Ghosts, Snake Oil Originalism, and the 2015-2016 Term. A central point is that Justice Scalia did not actually practice originalism:
Justice Scalia was of course best known for his frequent rants about how important text and history (read original meaning) are to judges who have to decide constitutional law cases. But the truth is that he did not come close to voting in an originalist fashion during his long career. I have set forth the proof of this accusation in long version here, and Judge Posner and I sketched it more briefly on this blog here.
In the areas of affirmative action, freedom of speech generally and campaign finance reform specifically, federalism, gun rights, takings, standing, and voting rights, among many others, Justice Scalia voted to strike down laws where neither the text nor the original meaning behind the text supported his votes. Scalia once said he was a "feint-hearted" [sic] originalist but later walked that back and then said he was an "honest" originalist. The truth is that he was a snake-oil originalist who sold a product he did not use himself.
Professor Segall points to affirmative action as one place where Justice Scalia did not take an originalist approach:
One of the most important cases this term demonstrates Scalia's hypocrisy. In his thirty years on the bench, Justice Scalia voted to strike down every affirmative action plan he ever saw, and no doubt he would have done the same in Fisher v, Texas. Scalia always argued that the Constitution is color-blind, and thus the government using racial criteria to foster diversity and equality was constitutionally indistinguishable from the government using racial criteria to completely exclude an entire race of people from a government benefit. But at no time in his career did Scalia try to justify this strong policy preference with reference to the original meaning of the text of the Fourteenth Amendment. Given the ambiguous text of the that Amendment (which does not mention race) and the fact that the Amendment did not stand for color blindness from 1868-1954, and given Scalia's dislike of the "living Constitution," when exactly did the meaning of the 14th Amendment change? Scalia never provided an answer, which would be fine for "living constitutionalists" but not for someone who thinks the Constitution is frozen in time.
Finally, a critique of Justice Thomas’s Fisher dissent:
Justice Thomas, who seemed very lonely this term often dissenting all by himself, ended his dissent in the abortion case Monday with a quotation from the man whose shadow hung over the term so darkly: "The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application." The constant finger pointing and chest thumping by Scalia and Thomas over the years that they applied "law" but the other Justices were doing something else marginalized both of them throughout their careers. Constitutional law is now and has always been about the clash of values. Maybe Thomas wouldn't have been so lonely this term, and maybe Scalia would have authored a few more majority opinions, if they had been more transparent about their own values.
My reaction: I'm not unsympathetic to the claim that Scalia was not as faithful to originalism as he might have been. But Professor Segall seems to overstate his case in several respects. First, it seems obvious that Scalia used originalism a lot of the time, even if not all the time. So the claim that he "sold a product he did not use himself" is clearly off the mark. The question is whether he used it all the time, or just much of the time. Realtedly, Scalia believed in stare decisis to an extent, so sometimes when he appeared to be nonoriginalist he may simply have been accepting nonoriginalist precedent (for example, he accepted that the equal protection clause applied to the federal government). One could say he selectively picked his precedents, but that's a different claim.
Still, Segall may be right that Scalia did not firmly ground all of his decisions in originalism (or precedent). That claim needs to be examined more closely, though. I would think in terms of three categories: (a) cases where Scalia offered an orignalist justification for his view, but that justification seems unpersuasive to some people; (b) cases where Scalia did not offer an originalist justification but it's not obvious what the originalist answer is (because originalist materials in the area are underexamined or because the issue is not easily understood in originalist terms); and (c) cases where a consensus originalist answer is evident but Scalia nonetheless took a nonoriginalist approach to reach the opposite conclusion. (A fourth category is where he followed strong nonoriginalist precedent).
To make his claim stick, Professor Segall needs to show a large number of cases in category (c). But I'm not sure there are any cases in that category. For example, gun rights -- one of his main examples -- is clearly in category (a). Heller is an originalist opinion. Professor Segall may not agree with it, but that doesn't make it wrong, and more importantly that doesn't make it dishonest. I agree that Scalia did sometimes get the originalist answer wrong (in my view) (see here, for example, sharply criticizing his view in Bond v. US), but I don't see any reason to suppose bad faith. Originalists disagree on hard questions.
More troublesome, to my mind, are the various issues on which Scalia took a strong view without offering a complete originalist (or precedent-driven) justification. Affirmative action seems to fall in that category. Professor Segall is right that Scalia never gave a complete originalist defense of his view, seeming instead to rest on what he thought was the obvious meaning of equality as colorblindness. However, Scalia was not manifestly wrong on this point; originalist scholarship on the equal protection clause generally, and on affirmative action specifically, remains unsettled and incomplete. I think he can be fairly charged with making too simplistic a conclusion, but that seems quite different from bad faith. (A number of Professor Segall's other examples seem to belong in this category as well, and I would add a few more that he doesn't mention).
Thus the key to a charge of bad faith is the third category: where Scalia chose a nonoriginalist meaning over a consensus originalist meaning (without a basis in nonoriginalist precedent). But are there any such cases? I invite suggestions.