The sudden and unexpected death of Justice Antonin Scalia heightens the importance of the 2016 presidential election. Whoever replaces Scalia will undoubtedly alter the balance of the Supreme Court. He was a conservative firebrand who, depending on your perspective, became one of the most revered or reviled justices in history. With three remaining justices over the age of 77, the direction of the Court, and the law of the land, could radically change in the coming years. But there will be time to address the political, legal, and social implications of these inevitable nomination battles. For now, I wish only to recount the day more than thirty years ago, armed with a bag of chips and a tuna sandwich, I debated constitutional law with then Judge Scalia.
In the fall of 1985, fresh from George Washington Law School, I was a judicial law clerk to Judge John Terry of the District of Columbia Court of Appeals. Judicial clerkships are highly sought after appointments for recent law school graduates and I was honored and privileged for having been selected. The D.C. Court of Appeals was the equivalent of a state supreme court, the highest appellate court in the District of Columbia for all criminal and civil cases originating in the city’s court system and before administrative agencies of the D.C. Government. The men and women who clerked on the Court of Appeals hailed from some of the nation’s best law schools. Intelligent and opinionated, we had many spirited debates about law and politics, individual rights, and notions of liberty and justice. It was an exciting year and remains one of the most satisfying experiences of my legal career.
Among the highlights of that year were the monthly brown-bag lunches hosted by the court librarian, who invited distinguished guests to join the appellate clerks for lunch in the judge’s conference room. Of all the guests we entertained that year, the most memorable was none other than Antonin Scalia, then an Associate Judge on the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit was the federal equivalent of the D.C. Court of Appeals, though more prestigious and influential. Because Congress, the White House, and most federal regulatory agencies are located in Washington, D.C., the D.C. Circuit is often the court of last resort for controversies of national import. Judges on the D.C. Circuit frequently make the short list of potential Supreme Court nominees whenever a vacancy arises. In fact, until Justice Scalia’s passing, four of the nine Supreme Court Justices originated from the D.C. Circuit (Antonin Scalia, John Roberts, Ruth Bader Ginsburg, and Clarence Thomas).
On a cool, sunny October day, dressed in a dark suit and red tie, Judge Scalia walked across the street from the federal courthouse to the sixth floor of the D.C. Courthouse, where he was met by 20 appellate clerks well aware of his confrontational and outspoken style. Although seven months would pass before President Reagan nominated Judge Scalia to the Supreme Court, he was widely regarded in legal circles as a brash and outspoken advocate of the Constitutional doctrine known as “originalism,” the idea that judges should interpret the Constitution consistent with the original meaning of its language. As a sitting judge and former law professor, Scalia mocked the notion of a “living” Constitution, one that evolved with the changing times, as simply an excuse for unelected judges to invoke their personal preferences and ideologies. He insisted his approach was value neutral and not necessarily a reflection of his personal views. If you don’t like what the Constitution says, he contended, amend the Constitution. But don’t read into the plain words of the text what is not there. No jurist or legal scholar in my lifetime has been as influential and effective in pressing his or her notion of constitutional scholarship as then Judge, and later Justice, Antonin Scalia.
As it happened, Judge Scalia sat to my immediate left the day he joined us for lunch. He had an intimidating, if slightly disarming, manner; part-Shakespeare, part Sicilian street fighter from Queens. He combined intellectual rigor and sarcasm with a caustic sense of humor. He was as irreverent and arrogant as advertised, even a bit rude, though he was open to dialogue and debate.
After introductions, Scalia offered his view of the Constitution and the role of a sitting judge. In discussing originalism, and by way of example, Scalia asserted that the Eighth Amendment prohibition against “cruel and unusual punishments” by definition did not outlaw the death penalty. This was so, explained Judge Scalia, because executions were widely practiced when the Constitution was ratified and thus the original meaning of the phrase “cruel and unusual” did not encompass death sentences for the most serious crimes. At this, I raised my hand, momentarily interrupting the judge’s train of thought. His glance impressed me as more Queens street fighter than Shakespeare.
“Yes, Judge Scalia, but does not society have the right to advance?” I asked with some hesitation. “I mean, two hundred years later, is it not the proper role of the courts to apply and interpret ‘cruel and unusual’ in a manner consistent with the standards of the 20th Century?”
“To what standards are you referring? Yours? Who decides? Why should it be up to nine unelected lawyers? By what right do they have to change the clear and unambiguous meaning of the words as written?” The judge waited impatiently for my response.
“It is the job of judges to interpret the Constitution in the context of changing times,” I replied. “It is not a static document.”
“Says who? And by what authority?”
“Look, stop trying to impose your values on the original meaning of the Constitution. If you are opposed to the death penalty, fine, then pass a law that abolishes it. Or amend the Constitution to explicitly prohibit the death penalty. But don’t suggest that the words of the Constitution, which meant one thing at the time they were written, now suddenly have a different meaning.”
Although there is more to this debate than can be resolved over a lunch box, I understood his argument. Up to a point, I agree with him. On the surface, it is a hands-off attitude, a nod to the separation of powers that gives the democratically elected branches of government the unfettered authority to make the laws. The Constitution should only intervene when Congress or the President clearly run afoul of their constitutional authority. Judge Scalia was not insisting on the existence of the death penalty. He was only stating that the Constitution, in his view, does not prohibit the death penalty. It is a distinction important to understand regardless of one’s opinion on the appropriateness or morality of state sanctioned executions.
But though I did not press the argument at the time, Scalia’s is not the only or even correct view of the Constitution and its proper interpretation. In 1922, Justice Louis Brandeis wrote that “our Constitution is not a strait-jacket” but “a living organism . . . capable of growth.” It requires judges to take account of the realities of American life. In 1791, public flogging was standard punishment in some communities and not widely considered a “cruel and unusual” punishment for certain crimes. And yet, is there really any question that fifty lashes on a public square for a convicted horse thief would today be considered by the courts, with near unanimity, a “cruel and unusual” measure? What changed, or evolved, if not the Constitution and our present-day understanding of it? As Justice Oliver Wendell Holmes wrote in 1920, the cases before the Court “must be considered in light of our whole experience and not merely of what was said a hundred years ago.”
Later, the conversation turned to the right of privacy, the foundation of Roe v. Wade and other decisions protecting the rights of individuals to abortion, contraception, and reproductive freedom.
“Where in the Constitution,” asked Judge Scalia, “is there a right to privacy?”
“In the concept of liberty under the Fourteenth Amendment,” I suggested.
“How so?” asked the judge.
“Well, what is liberty without the right to privacy? Especially from governmental interference in the most intimate and private decisions affecting one's body?” I replied.
“So, you would read into the Constitution a right not stated anywhere in its text, and then apply that right to prohibit democratically elected representatives from imposing the presumed will of the people in outlawing abortions?”
“Yes, because the concept of liberty, which includes privacy, has expanded over time,” I said.
“Are you applying the Constitution, or are you simply imposing your sense of morality and values into the law? And what gives you that authority?”
“But aren’t you doing the same thing?” I asked, evading the judge’s glare as I wiped the sweat from my forehead. The room had become intensely silent.
“No,” Judge Scalia insisted. “It makes no difference what my personal views are on the death penalty, abortion, any of these issues. What matters is what the Constitution does and does not prohibit. The document does not mean one thing in 1791 and something else in 1985. If Congress or a state legislature wants to legalize abortion, they can do so. But if the democratic process wants to outlaw abortion, unless and until the Constitution changes, they can do that as well. This is about upholding the democratic process. Judges are umpires, not law makers.”
For a solid hour, Scalia skirmished with a number of law clerks, most of whom were decidedly liberal and unpersuaded by Scalia’s reliance on originalism. I suggested at some point that certain constitutional principles have been expanded appropriately by the Warren and Burger Courts, especially in the areas of criminal procedure and civil rights, because “the courts' primary role is to protect the minority from the tyranny of the majority.” And though I cannot recall precisely Judge Scalia’s response – something like, “So does the Constitution change when today’s minority becomes tomorrow’s majority?” – I sensed, without any evidence, he was thinking, “Look, you little shit, you don’t know anything.” But I believe he enjoyed the intellectual exercise. He even may have found it invigorating. On that, we were in agreement.
By summer’s end, Judge Scalia was sworn in as an Associate Justice of the Supreme Court, where he would serve for the next 30 years. He will be remembered as one of the most influential conservative jurists in American history and a defining figure in American constitutional law. Although I did not agree with most of Scalia’s views on the Constitution or the role of the judiciary, I respected his intelligence and ability to articulate persuasively his overriding judicial philosophy. At a public appearance in 2015, Scalia said what he easily could have said during our lunch together 30 years earlier: “Don’t paint me as antigay or antiabortion or anything else. All I’m doing on the Supreme Court is opining about who should decide. Is it a matter left to the people, or is it a matter of my responsibility as a justice of the Supreme Court?” To him, at least in these public pronouncements, it was simply about the democratic process, the rule of law, and the separation of powers. Whatever one may think of the political and social impact of Justice Scalia, it is important to understand his point of view and confront honestly his questions, which go to the heart of American constitutional law and the essence of a democracy.
My problem with Scalia was that, despite a clearly articulated judicial philosophy, his rulings frequently were less value-neutral than he insisted. Scalia was a conservative through-and-through, and he exerted his power in ways that advanced a conservative political agenda. His doctrine of originalism served to set in stone the Constitution as it existed 225 years ago. But intentionally vague concepts such as “liberty,” “equal protection,” and “due process” do not remain fixed in time. Equal Protection and Due Process as understood in 1791 or 1868 did not preclude “Whites only” water fountains, racial and gender discrimination, slavery, or Jim Crow. Only with time and social progress did that change. The same is true for many other constitutional concepts.
In many politically-charged cases, Justice Scalia seemingly applied judicial restraint to laws he agreed with, and became a judicial activist for statutes he disagreed with. Thus, he consistently ruled against constitutional protections for gays and lesbians in voting to uphold laws that discriminated against same-sex couples. Dissenting in Obergefell v. Hodges, Justice Scalia wrote: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” But in District of Columbia v. Heller, he effectively disregarded 200 years of judicial precedent in overturning the District of Columbia’s gun registration law. Ruling that the statute violated an “individual’s” right to bear arms, he applied a view of the Second Amendment disconnected from its history and original meaning of a “well-regulated Militia.”
In Citizens United, Scalia joined the majority in ruling that a bipartisan campaign finance law limiting how much money corporations spend on political advertising violates the First Amendment’s “free speech” clause. According to Scalia, “to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.” Really? What was the basis of his authority? Did not Justice Scalia impose his own unelected view over that of the nation’s elected representatives through a concept of speech not previously recognized in 200 years of constitutional jurisprudence? What gives? Indeed, Scalia’s writings and opinions in these and many other cases betrayed the philosophical consistency so confidently asserted over tuna on rye more than three decades ago.
And yet, Justice Scalia was a persuasive and formidable proponent of passionately held views. I am grateful to have had the opportunity to “debate” Justice Scalia as a young law clerk. I did not change his mind, and he did not change mine. He was cantankerous and rude, arrogant and opinionated. But in one hour of interaction, he had an impact on me, and my fellow law clerks. I did not adopt Justice Scalia’s worldview or judicial philosophy, but I continue to share his professed respect for the law, the Constitution, and the democratic process. For better or worse, his judicial philosophy, if not his forceful personality, will remain a constant presence in legal and constitutional circles for years to come.