A Nation of Laws: Antonin Scalia’s Legacy

Supreme Court Justice Antonin Scalia admitted his approach to jurisprudence was less than perfect, but he asserted it was better than any of the alternatives.

Justice Antonin Scalia. Public domain image.

Antonin Scalia. The mere pronouncement of his name conjures emotions, thoughts, and considerations without really having to say anymore. The various aspects of the ongoing debate over his legacy will already be at the forefront of most readers of this essay at this precise moment in their reading, before anything has even been presented.

Why? Why are the views of his legacies so varied? How can a man engender so much hate and so much love at the same time? How can a man have so much debate about his legacy and his views, even among those who consider themselves heirs to his legacy?

No clear answers can be found in a short essay. Indeed, it’s unlikely they could be found in a multi-volume publication of thousands and thousands of pages. But perhaps we can approach, at least, an understanding of the complexities of the question and arrive at a hint of an answer.

A Nation of Laws

Antonin Scalia was a Supreme Court Justice whose philosophy on jurisprudence helped create an entire school of thought on law and, in many ways, has altered the direction of American jurisprudence over the course of the last four decades. Aspects of this philosophy include originalism, textualism, positivism, and conservatism. But while these aspects of his philosophy constitute the basis of the typical debate over his legacy, are they, alone, his legacy? Scalia himself would likely say no.

You cannot understand any of these complex and sometimes contradictory approaches to jurisprudence without understanding Scalia’s broader goal: the maintenance of an impartial and independent judiciary. If the judicial system has been enabled to weather populist storms, if it can set aside the demands of various political interests, if it has been maintained as an independent branch of government that stands above partisan discord, and if its determinations are rooted in John Adams’s notion that we should be, “A nation of laws, not men,” then that is where Scalia’s lasting legacy can best be found.

It is difficult to discuss the different aspects of Scalia’s judicial philosophy separately and on their own merits because of their interconnectedness. None of them truly stands alone on their own merits. However, each of these aspects possesses conflicting pieces with the others.

Original intent can conflict with the plain meaning of a text. The approach of positive law can frustrate the original intent of drafters who assumed respect for natural law. Conservative jurisprudence and judicial restraint can sometimes allow legislatures to circumvent constitutional restraint. The very fact that any philosophy built on Scalia’s is necessarily one that seeks to find prudence in tension instead of a pure harmony of thought necessitates an attempt to separate the aspects, if only to appreciate the complexity of the whole. Let us, then, consider each aspect in turn as best we can.

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Originalism

Steven Calabresi, in an essay for the National Constitutional Center, defines originalism as “a theory of the interpretation of legal texts, including the text of the Constitution” that believes “the constitutional text ought to be given the original public meaning that it would have had at the time that it became law.”

Let’s unpack this idea. Originalism’s basic premise is deference to the laws as written and as understood by those who passed the law. This suggests that judges should refrain from philosophizing or seeking evolution in the meaning of texts in order to arrive at jurisprudence that reflects moral beliefs on what the laws ought to do, as opposed to what they are or are intended to be.

The goal, then, is to place the determination of what ought to be as the purview of the legislative and executive branches of government and to make the judge’s job one solely of determining what is. And, for such determination, the judge is to rely on recorded history.

This notion is nothing new. The famous 18^th Century jurist William Blackstone, in his Commentaries on the Laws of England, said, “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”

Originalism, then, is an unoriginal idea and one that has been around for as long as judges have had to make judgments. Even the first arbiter in the mists of history would have had to base judgment upon some notion of tradition for the involved parties to have considered the judgment a fair one.

The problem, of course, is that original intent cannot always be known, hasn’t been recorded, or is simply imperceptible. Much of law is the result of compromise, with vague wording that allows for different parties to interpret the text differently and be content with its passage. Originalism, if it could be universally relied upon, would not be something argued over but universally embraced. Here, we must consider the other aspects of Scalia’s philosophy to find his answer for such moments.

Textualism

The first thing that an originalist judge in the mold of Scalia might turn to in the absence of clear intent for a law is a pure consideration of the text itself, absent all context or consequence. What do the words themselves mean?

Clint Bolick, in an essay for the Hoover Institution, defines textualism simply and concisely: “If the meaning of the words is clear, the judge goes no further.” To a pure textualist, not even original intent matters all that much. The various motivations of the parties involved in crafting a law cannot be relied upon to grant a clear view of its actual impact on the body of law. Instead, a textualist focuses on the words themselves and limits their reasoning to only the logical, possible meanings the text provides.

If Congress passes a law that mandates simply, “A worker shall be paid a fair wage,” a textualist judge cannot possibly mandate that such wording should or could mean a specific set wage, no matter how much evidence is presented to them that those who passed the law intended the law to provide a specific set wage.

Outside of pure textualism, it is best understood as a device at the hands of an originalist to limit the scope of jurisprudence in the absence of clear intent. While textualism, at times, can create justifications for going against the overall originalist scheme, when properly used, it shores up its designs. Textualism provides another way to keep the legislative prerogative on the legislature.

And yet, many of the problems stated earlier remain. The courts are faced quite regularly with questions where the intent of law is unclear and the text itself is vague. In such a circumstance, a judge in the mold of Scalia would grab for the next tool in the originalist tool bag: legal positivism.

Legal Positivism

Positivism is one of the more difficult legal ideas to define and understand. The most succinct definition to be found is provided by Banks and O’Brien as, “the separation of law and morality.” In contrast to natural law, positivism says that the authority of the law lies solely in the authority of whoever made it law.

To a positivist, there is no greater unwritten law that delegitimizes lesser written law. All that matters, to a positivist, is that the law was adopted through the proper process by the recognized and established authority. There is no sense of morality that dictates the application of law be adjusted or bent to answer the demands of a higher law. All that matters is proper process and authority.

Scalia, Bork, and others adopted notions of positive law in their attempt to banish moralizing and philosophizing from the bench. In this way, when a law comes before a judge with unclear intent and vague wording, the jurisprudence would be bound to the shackles of the law as it exists, and the judge would not be tempted to breathe his/her own views and morals into the law.

Scalia himself demonstrated the positivist view when he said, “We don't sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you're a good judge, you don't really like the result you're reaching. You would rather that the other side had won, and it seems to you a foolish law. But in this job—it's garbage in, garbage out. If it's a foolish law, you are bound by oath to produce a foolish result because it's not your job to decide what is foolish and what isn't. It's the job of the people across the street.”

From this view, it isn’t the job of a judge to actually deal with the problems presented by the lack of a clear understanding of intent or the difficulties created by the poor wording of a law. From the perspective of positivism, a judge should maintain the poorness of the law with what some will construe to be a poor judgment and, once again, put the prerogative on the legislative branch to craft better laws.

Conservatism

But there are situations when even the combined usage of originalism, textualism, and positivism fails to answer the question presented to the court. What is an originalist judge in the mold of Scalia to do when push comes to shove and they are, essentially, forced to offer their view of morality in a court decision? The answer, to the chagrin of many, is to fall back on tradition, upon a conservative view of jurisprudence and law, and hold on, as best as possible, to a notion of judicial restraint and the sanctity of precedence.

Note that we’re not talking necessarily about conservative politics. Instead, this final tool in the originalist tool kit involves a conservative sensibility. This is best exemplified by the near sacredness many judges grant the notion of stare decisis.

On its face, stare decisis may seem at total odds with originalism. Is an originalist judge, for example, a hypocrite for ignoring what could be clear intent in order to uphold a hundred years of precedent? Was Scalia demonstrating an inconsistent philosophy when he admitted that, “in a crunch I may prove a faint-hearted originalist” as he considered the realities of precedent and the traditions of American jurisprudence?

The answers to these questions can be no, so long as we bear in mind Scalia’s overall goal: an impartial and independent judiciary that stays above the fray. What stare decisis allows is for the originalist judge to rely upon what has been established in order to meet the overall originalist goal of a judiciary that hesitates to significantly alter the status quo and become a major player in the political anxieties of a given moment in history.

The Best Alternative

So, here we have the various aspects of Scalia’s applied philosophy of jurisprudence: originalism, textualism, positivism, and conservatism. Our consideration of these aspects forces an admission that this philosophy is not one of continuity but of tension, and the extent to which each aspect is relied upon to reach a judgment is largely based on the facts of a given case.

Where intent is known, and the facts of history are well established, an originalist judge can rely on pure originalism and offer a judgment. Where intent is uncertain, and the facts of history are not recorded, an originalist judge can turn to a reliance on the clear meaning of the text and offer a judgment. Where intent is uncertain, and the text is vague, an originalist judge can defer judgment of the rightness of a law by pointing to the procedure and legitimacy under which it was passed, and place the responsibility for fixing the law upon the legislature. And, when push comes to shove, an originalist judge can fall back upon precedence to avoid serially disrupting the status quo through his/her judgment.

Is this a perfect philosophy? No, it is not. But those who demand that originalism prove itself as a perfect philosophy attempt to push it beyond the bounds even Scalia himself held for it.

"My burden,” said Scalia, “Is not to show that originalism is perfect, but that it beats the other alternatives.” He stipulated that originalism “is not perfect" but that "in ease of lawyerly application, never mind legitimacy and predictability, it far surpasses the competition." His argument is that judges and lawyers "are not trained to be moral philosophers" and that “history is a rock-solid science compared to moral philosophy."

Originalism and the legacy of Scalia, then, is perhaps not best considered as a philosophy at all, as we have thus far considered it. Instead, what Scalia embarked upon was a project and a journey to find the best ways possible to re-establish and maintain a nonpartial and independent judicial system.

He would likely be the first to admit that he was far from perfect as he traveled this journey and passed the project on to others. But the place where the current judiciary finds itself today is not altogether a bad one. In fact, when holding up America’s Judicial Branch in comparison to the other branches of the federal government, it quite certainly stands on the most certain footing of the three, has insulated itself from institutional dysfunction far better than the other two, and is quite arguably the only branch of the federal government that in any way resembles what was envisioned by the framers of the US Constitution and behaves based on the principles of the founding vision.

Originalism Passes the Test of Time

Perhaps the best demonstration of Scalia’s legacy comes by considering the response of the judiciary to the floodgate of accusations of fraud in the wake of the 2020 presidential election.

There is perhaps no equivalent in history for the maddening pace at which judges were appointed to positions in the federal judiciary between 2016 and 2020. Republican appointees now constitute a tremendous portion of federal judges on the bench.

And yet, the combined aspects of originalism, to which the majority of these judges turn as they deal with matters brought before them, combined to announce the various challenges to the 2020 election brought before them as dead on arrival. Various Republican leaders who thought they could turn to the judges they had helped appoint for assistance in a political crusade found their hopes smacked into reality with extreme prejudice by the philosophy, the journey, and the project of originalism. The judiciary, against all angry, populist demands, would maintain its impartiality and independence and hold itself above the fray.

Antonin Scalia. It is his legacy we have considered in this essay. It is a complicated legacy and one, as we have seen, that is often found in the tension between the aspects of his project rather than in their continuity with each other. His legacy is difficult to discern because the project, the journey, is far from over, and, truly, has only just begun.

The question, really, relies on whether the various approaches to jurisprudence that he championed and introduced into the popular lexicon succeed in assuring the judiciary’s role in establishing and maintaining America as “A nation of laws, not men.” It relies on whether originalism, textualism, positivism, and conservatism truly provide the tent poles for a nonpartial and independent judiciary or if, creeping beneath the layers, it proves to be an approach adopted by those looking for an excuse to get what they want. Time will tell.

Justin Stapley received his Bachelor’s Degree in Political Science from Utah Valley University, with emphases in Political Philosophy and Public Law, American History, and Constitutional Studies. He is the Founding and Executive Director of the Freemen Foundation as well as Editor in Chief of the Freemen News-Letter. @JustinWStapley

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