When I was in law school, from time to time I would have a little intellectual banter with my classmates. We would quiz each other on the composition of our ideal United States Supreme Court if we could draft justices from any era (very exciting group of people, we...
When I was in law school, from time to time I would have a little intellectual banter with my classmates. We would quiz each other on the composition of our ideal United States Supreme Court if we could draft justices from any era (very exciting group of people, we lawyers). My own went something like Oliver Wendell Holmes, Jr., Hugo Black, John Marshall, Joseph Story, James Wilson, John Marshall Harlan, Charles Evans Hughes, Louis Brandeis, and Lewis Powell. If I could pick judges who never made it to the highest level, I might substitute one out for Henry Friendly, Learned Hand, or Chancellor Kent. What was notable about our game, however, is almost no one picked justices from the current Supreme Court. This is in no small part because every one of them is a bland, unoriginal writer. The only near-contemporary I might name is the recently deceased Antonin Scalia. In his later years on the bench, he became the most prominent member of the federal judiciary as he published law review articles, granted television interviews, and gave talks across the country. A collection of his speeches, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, has been edited and recently published by Edward Whelan and the justice’s son Christopher Scalia. It performs expertly its task of showing a more personal side of the most important justice of the last thirty years.
The central theme of this book is Justice Scalia’s ardent defense of originalism. There are two closely related but distinct theories of originalism: original intent and original meaning. Original intent looks at the text of a legal document and attempts to discern what the drafters intended for it to mean; original meaning, on the other hand, takes the text and interprets it using the understanding of the words as was common to the time of the law’s creation. Justice Scalia believed in the latter. The corollary to original meaning is textualism, the idea for modern statutes that words plainly mean what they say unless a different definition is provided.
Another important theme of Justice Scalia’s work was the need for judicial humility and avoidance of reading one’s own views into a statute. In a speech to the Dominican Order, the justice explained Thomas Aquinas believed any written code opposed to natural law was immoral and invalid. Natural law is the idea that there are certain moral truths discernible by anyone using right reason. Justice Scalia’s argument against this position was twofold. First, it is impossible for any one individual to always correctly discern the moral arc of the universe. Even if particular issues seem to have a clear-cut answer, this type of judging will ultimately descend into choosing one’s own personal policy preferences. Second, as a practical matter, attempting to implement an equitable interpretation of the law, rather than what the words say, leads to unpredictable results.
One of the most famous examples where Justice Scalia applied this argument was abortion. For him, Roe v. Wade and its case law progeny were a tragedy, not just as a member of the Catholic faith, but also for reading into the United States Constitution a right to abortion contained nowhere in the text. Justice Scalia argued that it should be left to the legislature, as the democratically elected branch, to determine whether or not to allow abortion; if the legislature chose to permit it, Justice Scalia would apply the law despite his personal disagreement with it as a policy.
Justice Scalia faced a few major criticisms while alive. One was that he allegedly applied his own judicial philosophy of originalism inconsistently. Another was the concern of many that the Constitution is a relatively bare-bones text and legislatures are often lethargic or unresponsive in crafting laws supported by broad swaths of the public, so Justice Scalia’s philosophy did not account for the challenges of the modern era. Whether those criticisms have merit is left to each individual reader, but undoubtedly Justice Scalia’s views continue to have an outsized influence on legal interpretation.
Justice Scalia covered a wide range of other issues, including his general hostility to using foreign law to interpret American rights outside rare circumstances, eulogies lamenting the passage of time and friends, his pride in being a Catholic and Italian-American (emphasis on American), the value of a college education for newly-minted graduates, and an encomium on turkey hunting that may be the best defense of sportsmanship by a federal official since Herbert Hoover’s advocacy of fly fishing. One section praising his personal heroes included a piece on William Howard Taft. Taft is a footnote in presidential history always coupled with Theodore Roosevelt, but Justice Scalia pointed out his pivotal role as chief justice in lobbying for the Supreme Court to receive their own building in Washington, D.C. and supporting the passage of a bill giving the court discretionary review over its appellate docket. This was always part of my esteem for the rotund man, and I am glad Justice Scalia concurred.
My favorite speech in the collection, however, may be his defense of dissenting opinions. In his later years, Justice Scalia became increasingly stinging in his critiques of the direction the Supreme Court was headed. Sometimes a dissent is a cry from the wilderness unheeded at the time and later viewed as prophetic, other times it is an expression of individual quirkiness, and in some instances it represents the position of a substantial chunk of public opinion. In each case, it is an attempt by the dissenting judge to stake out his own intellectual domain and provoke the reader into considering a new view. Few performed this job better than Justice Scalia.
Sometimes he would save those criticisms of colleague’s opinions for private discussion, rather than score easy political points with public criticism. As Justice Ruth Bader Ginsburg noted in her touching foreword, “Now and then he would call me, or stop by my chambers, to point out a slip I had made in an opinion draft. He did this, resisting circulation of a memorandum, copes to other justices, that might embarrass me. When we disagreed, my final opinion was always clearer and more convincing than my initial circulation. Justice Scalia homed in on all the soft spots, energizing me to strengthen my presentation.” With the bitter partisan bickering that plagues both the Republican and Democratic parties, it is nice to know that tucked away in the far corners of government some people still have the capacity for personal respect during instances of professional disagreement.
Justice Scalia’s absence from the Supreme Court leaves it poorer. Even on occasions when one disagreed with him, the force of his character and intellectual acumen challenged his opponent’s preconceived notions and pushed them to make their own arguments sharper. This collection shows the gifted mind and warm personality that defended American law for decades.