David Dorsen on Scalia as Part-Time Liberal
In the Washington Post, David M. Dorsen: Antonin Scalia, part-time liberal. (The essay lead-in notes that Mr. Dorsen is the author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions,” to be published by Cambridge University Press on Feb. 24.) From the introduction:
As President Trump prepares to name a successor to Justice Antonin Scalia, the conventional wisdom is that the choice will not change the liberal-conservative balance on the court. After all, this argument goes, if Trump chooses any of the names on his previously published list, the court and the country will simply be swapping one conservative justice for another.
That understanding is incorrect and, as the Senate considers Trump’s nominee and the impact on the court, could be dangerously misleading. This will come as a surprise to many, but in a number of important areas, including the rights of criminal defendants and freedom of speech, the justice was actually quite liberal, as that term is commonly applied. Of Scalia’s approximately 879 opinions, including comments on denials of petitions for certiorari, I have counted 135 as liberal and a number of others as arguably liberal.
One might add in as well cases that seemed "conservative" at the time they were written but now have a more liberal valence, For example, Employment Division v. Smith was reviled by liberals when decided (1990), when it seemed to withdraw constitutional protection from minority religions; but it is now the case that allows "liberal" states to require conservative Christians to comply with laws counter to their religious beliefs. And Printz v. United States, equally reviled by liberals for protecting pro-gun rights states from federal commandeering, is now the bulwark protecting sanctuary cities from the Trump administration.
(Thanks to Michael Perry for the pointer).
At NRO, Adam Klein comments: Antonin Scalia, Full-Time Originalist. He concludes: