Home / General / “Son, Back In My Day Justice Scalia’s ‘Originalism’ Was Highly Influential.” “Really?”

“Son, Back In My Day Justice Scalia’s ‘Originalism’ Was Highly Influential.” “Really?”

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Nah, not even really with respect to his own jurisprudence:

Hollis-Brusky is certainly correct that the conservative constitutional principles advanced by Scalia and the Federalist Society alike will endure, and that future Republican Supreme Court nominees are likely to be even more reactionary than Scalia. What is up for debate is whether these judges are likely to make frequent use of originalism—the theory that holds judges should ascertain the original intent of the Constitution’s framers—and whether it will really matter if they do or not.

My guess is that it will not. Originalism is already a relatively marginal force in the Supreme Court’s constitutional interpretation. And, more importantly, originalism doesn’t meaningfully drive judicial decision-making even when judges nominally use it.

[…]

Heller is precisely analogous. The vote on the case broke down precisely on expected ideological lines. What grand theory the majority and dissenting opinions used to justify their conclusions is not terribly important. Before and after Scalia, justices will use history when they believe it supports their ex ante conclusions and ignore it when they believe it doesn’t.

And, of course, Scalia himself was far from a consistent originalist. As Heller shows, history is often indeterminate, providing adequate evidence for both sides of a debate. And in cases where historical evidence might be inconsistent with his cherished political views, Scalia would simply ignore it. It is farcical to argue that the Due Process Clause of the Fifth Amendment was originally understood in 1789 as forbidding all racial classifications. This didn’t stop Scalia from finding that federal affirmative action programs were categorically unconstitutional because they classified people by race, with a conclusory two-paragraph opinion that says nothing about the history of the Fifth Amendment.

[…]

I welcome the relative candor of Alito and Roberts. No grand theory constrains or explains judicial decision-making. Whether the next Supreme Court justice is appointed by a Republican or Democratic president matters a great deal, because Supreme Court justices tend to reliably reflect the constitutional values of the president that appointed them. How often the next justice justifies his or her decisions using historical evidence, conversely, is of trivial importance.

Scalia certainly had an influence on how judges predisposed to agree with him wrote their opinions, although this is more true with his statutory than with his constitutional interpretation. Whether he influenced the far more important question of how judges decide cases is a different story.

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