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The Sporadic Originalists

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I have an article up in TAP about the affirmative action cases and “originalism.” The cases make clear that for even justices who occasionally practice it rarely gets in the way of strongly held policy preferences:

Affirmative action cases pose a similar but even more difficult problem for conservative originalists. It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman’s Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of “color blindness,” a principle that is consistent with but hardly compelled by the 14th Amendment’s broad language.

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And that’s even not the worst of it. Consider the case of Adarand v. Pena, in which Scalia and Thomas found a blanket constitutional prohibition on federal affirmative action. The problem for originalism here is even more grave, because the 14th Amendment doesn’t apply to the federal government. And if it’s a stretch to say that the equal protection clause was originally understood as prohibiting all racial classifications, it is absolutely farcical to read this principle into the due process clause of the 5th Amendment, which was ratified when the Constitution protected slavery. Whatever its independent merits, then, the Scalia/Thomas position on affirmative action has nothing whatsoever to do with originalism.

Having said that, I do think that Scalia deserves credit for taking Roberts to task for his disingenuous “I’m not overturning the precedent, I’m just refusing to ever apply it” hair-splitting. (As a friend noted in email, with Alito it seems almost a neurosis — what state will the Republicans lose in 2008 if Flast v. Cohen is overturned explicitly? He supposes that it’s the counts of precedents overturned that matters; if relatively few precedents are explicitly overruled some people may be fooled into thinking that nothing is really changing even as major branches of doctrine are being significantly revised.)

Walter Dellinger wrote recently that “But it’s neither minimalist nor restrained to overrule cases while pretending you are not.” Admittedly, as a skeptic I’m inclined to think of this kind of behavior as exemplifying minimalism rather than betraying it. But leaving aside the semantic issue the overall point he’s making is absolutely correct. The Court owes it to the public and role of the courts in a democracy to be honest about what it’s doing. If it wants to overrule Stenberg v. Carhart or McConnell or Flast v. Cohen, it should do so explicitly. In the meantime, however, it’s important not to be fooled when the Court declines to formally overrule a precedent it’s completely gutting.

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