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11/20/2017

Eric Segall on "Scalia Speaks"
Michael Ramsey

At Dorf on Law, Eric Segall (Georgia State) reviews Scalia Speaks (the collection of Scalia speeches edited by Christopher Scalia and Ed Whelan): Scalia Speaks Well: But Not About Originalism.  From the introduction: 

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics. ...

As usual, Professor Segall is a thoughtful and thought-provoking critic.  But a central complaint here is that Justice Scalia did not always follow originalism in his judicial decisions.  I'm doubtful that this charge undermines Scalia's theoretical defenses of originalism, for three reasons.

First, Scalia believed -- to an unspecified extent -- in precedent.  Many areas of constitutional law -- including one Professor Segall emphasizes, free speech -- are so heavily influenced by precedent that it may be impossible (or Scalia may have believed it impossible) in many respects to develop a workable practice of originalism.  A better criticism (sketched in my essay on Scalia's originalism in practice) is that Scalia had -- to put it generously -- an underdeveloped theory of precedent.  Thus it was often not clear when and to what extent he thought precedent overrode originalist analysis, and indeed it is sometimes hard to tell in his opinions whether he was engaged in doctrinal analysis or originalist analysis.

Second, I think Professor Segall and others overstate the extent Scalia failed to use originalist analysis.  Common examples, employed by Professor Segall later in his essay, include standing, anti-commandeering and state sovereign immunity.  As I discuss in my essay, Scalia's decisions in these areas do rely on originalist analysis (debatable originalist analysis, to be sure).  His decisions do not, however, rely on textualist analysis, a fact that has caused some critics wrongly to label them non-originalist.  (I nonetheless agree with Professor Segall that there are some areas -- he highlights affirmative action -- where it does not appear that Scalia relied on either originalist analysis or precedent).

Third, and most importantly, I don't see why Scalia's unjustified failures to follow originalism (if there are such failures) undermine the theory of originalism.  Originalism does not claim that even the most committed originalist will be able to follow originalism all of the time.  People are, after all, human, and the temptation to reach the intuitively "right" result must be very strong in some cases.  Originalism only claims (as Scalia says in the book) that it provides more constraints than theories of adjudication that explicitly or implicitly invite reliance on one's intuitive sense of the "right" result. That Scalia sometimes gave in to temptation (if he did) does not disprove this claim.