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03/22/2018

Michael Dorf on Linda Greenhouse on Scalia
Michael Ramsey

At Dorf on Law, Michael Dorf:  How Scalia Saved Originalism By Destroying It (commenting on this article in the New York Times by Linda Greenhouse).  From the introduction:

Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse concludes that Scalia's legacy as a whole is fading.

Greenhouse's assessment of Scalia's legacy in statutory cases is premature. Meanwhile, I think she misunderstands Scalia's views about constitutional interpretation and thus also misunderstands his legacy there.

On Scalia and originalism:

Greenhouse is right that debates about constitutional interpretation pre-dated and now post-date Scalia. But she is wrong about his position in that debate and thus fails to appreciate his profound impact on it. Although Scalia was not the only self-styled originalist to shift from original intent to original public meaning, he was one of the first and certainly the most prominent. And as a consequence of his influence, the vast majority of self-styled originalists now favor original public meaning. That is a major and lasting legacy.

By reorienting originalism in constitutional interpretation, Scalia thus saved originalism from the very sorts of critiques that he himself had leveled against intentionalism in statutory interpretation. But in saving originalism he also destroyed it, because once originalism was loosed from 18th century attitudes (or 19th century ones in the case of provisions like the 14th Amendment), judges and scholars could plausibly claim fidelity to original meaning while voting for outcomes that were inconsistent with the specific intentions and expectations of earlier generations. Once the likes of Ronald Dworkin and Jack Balkin were able to embrace originalism (as Dworkin did as early as 1996 in his book Freedom's Law and as Balkin did more recently), originalism ceased to be a distinctive position in debates over constitutional interpretation.

Agreed on the first paragraph.  Many people have made this point, but few as succinctly and -- given Professor Dorf's profound disagreement -- as generously.

I respectfully disagree with the second paragraph, while noting that it's a fair criticism.  Some scholars do take original public meaning as a license to diverge sharply from the attitudes and assumptions of the enacting generation.  For Scalia, though (most of the time) it was not such a licence.  Scalia's originalism, while ultimately focused on the public meaning, was informed by the social context of the enactment, which he understood to be highly relevant to (though not identical to) the original public meaning.  Scalia may have opened the door to the Dworkin/Balkin versions of originalism, but nothing in his version compels them.

While on the subject of Scalia, I want to note two continuing objections to the way academic commentary has often approached his legacy.

(1)  The claim, made by Greenhouse and also by Richard Hasen (author of the new book on Scalia, see here) that Scalia wrote "few memorable majority opinions" (Geeenhouse says except for DC v. Heller; Hasen adds "outside the criminal procedure area").  That's a fair number of exceptions already -- but being midway through teaching first-year constitutional law I can add a few others that are centerpieces of our course: Lujan v. Defenders of Wildlife (the standard citation and textbook example of modern standing law); Printz v. United States (a definitive anti-commandeering case in federalism law); and Employment Division v. Smith (redefining modern free exercise law).  That's starting to sound like quite a few.  But interestingly, as discussed here, these cases don't reflect a textualist approach (whether they are originalist is another question).

(2) The claim, as stated by Professor Dorf later in his post, that "[l]ike just about all justices, Scalia's votes were best explained in nakedly ideological terms. He typically voted for conservative outcomes and then (sometimes) offered originalist rhetoric to rationalize those results."  David Dorsen's book The Unexpected Scalia shows to the contrary that Scalia often reached liberal results, or results that are not easily categorized.  (Among the latter are Printz and Smith, which may have seemed like conservative opinions when they were announced, but which are now invoked, respectively, to defend liberal state laws against conservative religious objections and to defend liberal state policies against conservative national policies).