Cass Sunstein argues that some court observers are being too unkind to Antonin Scalia. There is a core of truth to Sunstein’s argument; unlike Alito and Roberts, Scalia’s sporadic interest in certain grand theories will sometimes lead him in heterodox directions on issues that aren’t of central importance to him.
That last qualifier is important, though, and there’s where I think Sunstein’s argument runs off the rails:
With respect to the Defense of Marriage Act, originalism (as Scalia understands it) leads to a clear conclusion: Congress may refuse to recognize same-sex marriages. In his words, “the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”
Is this position incompatible with his conclusion that affirmative-action programs violate the Equal Protection Clause? Maybe not. In his view, the constitutional requirement of “equal protection,” understood in accordance with its original public meaning, forbids any and all forms of racial discrimination.
Chief Justice John Roberts wrote the court’s Voting Rights Act opinion, but Scalia probably believes something like this: If the 15th Amendment is to be interpreted in accordance with its original meaning, Congress’s power to enforce that amendment “by appropriate legislation” doesn’t allow lawmakers to continue to use an outdated preclearance formula that covers states on the basis of practices that were eradicated long ago.
With respect to affirmative action, I’ve written at length about the problems with defenses of Scalia (and Thomas) before. To summarize, it’s only trivially true that the categorical unconstitutionality can be compatible with “originalism.” It’s possible, but only if you define principles at a sufficiently high level of abstraction that William Brennan could count as an originalist. And if we don’t just look at affirmative action in isolation, the picture is worse for Scalia — the 14th Amendment ladder of abstraction just happens to stop (i.e. reaching racial discrimination most of the framers and ratifiers of the 14th Amendment did not believe it reached, but not gender discrimination although nothing in the text limits equal protection to racial classifications) exactly at the level of his a priori policy preferences. (And this is with respect to state affirmative action; obviously, the idea that the 5th Amendment was originally understood as forbidding all racial classifications is farcical.) As Sunstein concedes, Scalia has never even tried to reconcile his affirmative action holdings with the original understanding of the 14th Amendment, and this isn’t just an oversight on his part.
With respect to Shelby County Scalia looks even worse. Perhaps Scalia “believes” that the “appropriate” qualifier in Section 2 of the 15th Amendment was meant to protect some kind of free-standing state sovereignty rather than to ensure that legislation was rationally related to the purpose of enforcing the ends of Section 1. And I can “believe” that the 14th Amendment was intended to require Congress to implement the French health care system, but it doesn’t matter very much unless there’s some credible historical reason for thinking that this is the best interpretation, which is a problem because there isn’t. And evidently, given his behavior at oral argument, it’s particularly implausible to cite Shelby County as a case where Scalia was guided by disinterested historical inquiry rather than his policy preferences. Again, the fact that he said nothing about the history of the amendment and neither the majority opinion nor the concurring opinion filed by the member of the Court with the greatest interest in “originalism” did isn’t just an oversight or a coincidence. There was no historical evidence cited for their position because there for all intents and purposes isn’t any and none of the 5 justices in the majority based their votes on historical analysis.
There is, I agree, a shallow and uninteresting version of the “judical activism hypocrisy” argument, that runs something like “the justice thought that law x should be struck down while law y should be upheld, how inconsistent!” But the problems with the opinion in Shelby County run a lot deeper than that, which is presumably why a lot of people found Scalia’s attacks on overweening judicial power in his Windsor dissent a little hard to stomach. And on issues that are important to Scalia, there’s no reason whatsoever to think that “originalism” constrains his votes or opinions. This makes him…like every other Supreme Court justice ever, but there’s no reason to buy his “Last Honest Judge in America” routine either.