« Michael Perry on Fisher v. University of Texas
Michael Ramsey
| Main | John McGinnis and Peter Shane on the Treatymaking and Appointments Clauses
Michael Ramsey »

06/30/2016

Eric Segall Responds on Scalia and Snake Oil Originalism
Michael Ramsey

In response to this post, Eric Segall comments:

Thanks for engaging my work on The Originalism Blog, but I have to say this time you didn't address my main point and didn't summarize the piece accurately.

What made Scalia a snake-oil salesman was the combination of his originalist and judicial deference rhetoric. It is simply not enough for there to be a tie when it comes to outcomes based on originalist sources given Scalia's constant "committee of nine lawyers" rhetoric. My accusation stems from both sides and you only dealt with one.

I could list legions of cases where good faith originalists could disagree about the validity of a law, but a judge who talked the talk of deference like Scalia did would have had to say a tie goes to the law.

Even if I'm wrong, you should have addressed this argument.

Fair enough, I did not address the deference point (although I leave it to readers to decide whether Professor Segall's original post was more about Scalia's nonoriginalism or Scalia's nondeference).  Here is what Professor Segall said about Scalia and deference:

One scholarly response to the argument that Scalia constantly voted in a non-textualist, non-originalist way through huge swaths of constitutional law is that in many of the areas of law listed above, there are plausible, even if not persuasive, originalist arguments in support of Scalia's votes (arguments excavated by extremely motivated law professors, not Scalia himself). 

Even if there are such arguments, which I seriously doubt, such speculations were not available to Scalia, who also spent much of his career arguing that life-tenured federal judges should not invalidate decisions by other political actors absent clear text or strong historical evidence. For some so-called New Originalists like Randy Barnett or Ilya Somin, who openly admit that they believe in strong judicial review by, in Scalia's words, "a committee of nine unelected lawyers," maybe reasonable historical evidence may be enough to sustain judicial aggression. But Justice Scalia never argued for that position. Instead, in most of the areas of law listed above, he simply either ignored or mischaracterized historical evidence while often stridently accusing other Justices of playing fast and loose with the rules of the constitutional game.

I think this is partly true and partly not.  I agree that Scalia's democracy rhetoric sits a little uncomfortably with his originalism.  Pure democracy and originalism are not allies, in the sense that originalism envisions unelected judges overturning the enactments of modern majorities.  I think, though, there is less inconsistency here than appears at first.  Scalia's criticism was that "nine unelected lawyers" should not make social policy (that being a job, in our separated-powers system, for the elected branches).  However, he did think that the "nine unelected lawyers," acting as a court, should undertake a court's role of applying enacted law, according to its text and original meaning, even if that meant overturning democratic acts.  They key, to him, was whether the "unelected lawyers" were functioning as a court or as a committee to determine social policy.  Now Professor Segall might respond that in fact Scalia also acted as a committee to determine social policy (but that returns us to the question whether Scalia was dishonest, the subject of my original post).

I also agree that Scalia can be criticized for not articulating or implementing a burden of proof for showing the Constitution's original meaning.  Suppose one concludes that there are two possible original meanings of the text on a particular issue, one of which would invalidate a statute and one would not.  If one further concludes that the meaning leading to invalidation is 51% likely (versus 49% for the other), should a judge invalidate the statute?  Practitioners of originalism need an answer to this question.

It's not obvious to me, though, that the answer is the judge should defer; nor is it obvious to me that Scalia would necessarily have to reach that conclusion.  Scalia opposed judges making social policy.  Invalidating a law based on a 51% likelihood of unconstitutionality isn't making social policy (assuming unconstitutionality is based on original meaning).

Nonetheless, I agree it's a problem  that Scalia (to my knowledge) never  comprehensively addressed this point.  If he accepted judges invalidating statutes based on very close questions of original meaning, he might have admitted more of the tension between originalism and democracy.  If he had expressly demanded a higher standard for invalidity, he might have further developed his arguments in the areas Professor Segall rightly criticizes (such as affirmative action).

As an aside, the article Professor Segall links above -- Gil Seinfeld, The Good, the Bad, and the Ugly: Reflections of a Counterclerk in the Michigan Law Review First Impressions -- is an outstanding, balanced and entertaining critique of Justice Scalia.  On affirmative action, Professor Seinfeld also says this:

I don’t mean to intimate by any of this that the Justice was not a man of principle. I think he was. Nor do I mean to suggest that he was meaningfully worse along this dimension than many of his colleagues. I don’t think that’s true. What I think is that, as is true of many men and women of principle and of many other able and respectable jurists, Justice Scalia’s instincts about what was right and what was wrong sometimes overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored).