12 November 22
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This Supreme Court has embraced his doctrine of judicial modesty in an imperious fashion.
“I am not particularly concerned about whether the courts put the crown on their own head in Napoleonic fashion or whether somebody else conferred it upon them,” Scalia said to the panel. “We can blame everybody: the Congress, the executive, and the courts. I do not care whom we blame, I just do not want the crown there.” The philosophy that he went on to develop as a professor and Justice took aim at broad, ambiguous, and flexible decrees that he thought let judges rule imperiously.
Originalism, which bound judges to historical evidence of the Constitution’s original meaning, was part of Scalia’s plan to restrain them. “I have my rules that confine me,” he said in one appearance on C-SPAN. “When I find it, the original meaning of the Constitution”—and here he pressed his palms together tightly, like a prisoner in shackles—“I am handcuffed.”
Scalia also advocated for judges to develop strict rules that would tie them down rather than flexible standards that called on courts to balance interests and weigh various factors. “If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite,” he wrote in a 1989 article called “The Rule of Law as a Law of Rules,” “I will be unable to indulge those preferences; I have committed myself to the governing principle.”
From the high court, Scalia pushed his philosophy in colorful opinions that bemoaned his colleagues’ lack of discipline. In his dissent to the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, he sniped that the best the majority could do in defending the right to abortion was “rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.” He also slammed the “undue burden” test, used to determine whether a particular regulation violated the right to abortion, as “amorphous,” “unprincipled,” “standardless,” “hopelessly unworkable,” “rootless,” and “inherently manipulable.”
Another case Scalia reviled was Lemon v. Kurtzman, from 1971, about the establishment clause of the First Amendment. When a government action allegedly violated the separation of church and state, Lemon told courts to ask whether that action had a clear secular purpose, whether it would advance or inhibit religion, and whether it was excessively “tangled” with religion. Decades later, Scalia lamented Lemon’s unprincipled results and sarcastically praised its “wonderfully flexible consequences.” It was, he wrote, a “docile and useful monster,” one that the Justices could invoke whenever they wanted (“one never knows when one might need him”) to strike down a government action.
When Scalia started teaching at the University of Chicago, he was lonely. “You could fire a cannon loaded with grapeshot in the faculty lounge of any law school in the country and not strike an originalist,” he said. This changed. While Scalia evangelized his methods on and off the bench, a small group of conservative law students he’d helped advise as a professor, called the Federalist Society, was becoming the country’s most powerful legal organization. Over the following decades, the group turned judicial restraint into a conservative motto.
After Scalia died, in 2016, only two Justices on the bench, Clarence Thomas and Samuel Alito, adhered to his philosophy. Today there are at least five. They’ve done more than just embrace his ideas. Using their newly consolidated power, this Court has gone after the precise rulings that Scalia most hated. Now, by turning his impatient minority opinions into bombshell majority decisions, they’re showing what happens when jurists who claim to be concerned with minimizing their power come to occupy the throne.
The decision in Dobbs v. Jackson Women’s Health Organization, written by Alito and joined by all the conservatives but Chief Justice John Roberts, tracks Scalia’s dissent in Casey almost point for point. The majority complains that the liberal dissenters’ “vague formulation” that the Constitution should be interpreted through the “long sweep of our history” could not restrain the use of “raw judicial power.” Instead of the long sweep of history, Alito cared about a narrower frame: whether abortion was protected at the time the Fourteenth Amendment was ratified. Since most states in the nineteenth century outlawed abortion, he reasoned that an amendment passed then couldn’t protect it. “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ ” Alito wrote, “we must guard against the natural human tendency to confuse what the Amendment protects with our own ardent views about the liberty that Americans should enjoy.”
The conservatives fulfilled Scalia’s dream of killing Lemon, too, using his arguments about how the case had cut judges too much slack. In Kennedy v. Bremerton School District, the Court explained that the line between “permissible and impermissible” state action had to “accord with the history and faithfully reflect the understanding of the Founding Fathers.” Now judges will no longer consider why a state may have funded a religious school program or what kind of message the funding sent. Instead, they will look to the past and map it onto the present. In Bremerton, the Justices found, it did not matter that a football coach’s private prayers on the field had prompted players to join him; the establishment clause could not be interpreted to prevent public-school teachers from publicly praying.
Dobbs and Bremerton stressed the importance of straitjacketing judges. But these were far from restrained decisions—as evidenced by their divergence from centuries of proposals for taming courts. Scalia was not the first to realize the danger of giving judges the power to interfere with democratic legislation. In 1893, James Bradley Thayer suggested that judges should only strike down laws that are “so obviously repugnant to the constitution that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy.” Judicial minimalism, defended by the Harvard scholar Cass Sunstein, commands the Court to decide cases on the narrowest grounds available and not weigh in on issues it doesn’t have to resolve. The most familiar restraining principle is stare decisis, which pins judges to their previous decisions and admonishes against overturning them.
If the Justices had followed Thayer’s proposal, they would not have overturned Lemon. Since at least three of their colleagues found the decision constitutional under a well-established legal standard, it was not obviously repugnant. If they had been minimalists, they would not have taken away the right to abortion, which wasn’t necessary to resolve the case at hand, as Roberts showed in a narrower opinion. Writing only for himself, Roberts said that he would have dispensed only with Casey’s fetal-viability standard, which set the point at which abortions could be outlawed. This would have preserved some of both Roe and Casey, kept intact the right to abortion, and still allowed the challenged state abortion law to stand. In his lonely opinion, the Chief Justice sounds like he’s sighing: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
While using Scalia’s language, the Court is also erring from his commands. Originalism limits judges to considering only what the Constitution meant when it was ratified. It is precisely the narrowness of this historical analysis that is supposed to discipline them. But during this past term the Justices, as they gestured at the importance of originalism, wandered more freely about the archives and plucked from centuries-old sources without tying them to what the drafters or ratifiers thought. Though in Dobbs the Court relied on eighteenth-century precedent, it also cited British cases dating back to the twelve-hundreds and laws up to the nineteen-sixties. When so much is fair game, history lends itself to all the manipulations Scalia wanted to avoid.
Scalia’s philosophy of restraint was born in dissent. While the Court’s majority reached expansive conclusions that pleased liberals, he got to cry that they were heady and imperious and needed to be brought down to earth. Even if you thought he was smug, intolerant, and wrong-headed, at least you could see where he was coming from. That nine unelected lawyers have the power to shape our nation’s social order should unsettle us all.
It helped that Scalia wrote with the flair of a critic and the scorn of a professor’s withering margin notes. He could make the opinions of his fellow-Justices sound like unmoored poetic ravings. To Justice Anthony Kennedy’s line in Obergefell v. Hodges that marriage introduced couples to such freedoms as “expression, intimacy, and spirituality,” he asked, “Really?” When Kennedy instructed that rights can rise from “a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era,” Scalia’s response was “Huh?” Scalia had a gift for spotting hubris in the opinions that liberals most cherish.
But without Kennedy’s broad reflections on the meaning of liberty and marriage, where would we be? The Constitution itself is a rather airy and poetic document. The Fourteenth Amendment commands states not to deprive any person of “equal protection” or “life, liberty, or property, without due process of law.” Obergefell, in turn, was only the latest in a line of cases that have recognized rights that the Constitution doesn’t name—to contraception, to gay sex, and, until this year, to abortion—by reading that promise of liberty expansively. To restrain our interpretation of the Constitution to the minds of dead white men fails to honor the breadth and abstraction of their commands and will make all of us less free.
Whether the Justices who overturned Roe will be so bold as to take away other rights remains to be seen; they almost certainly won’t get the chance to do so this year. But we know from Thomas’s separate opinion in Dobbs that he at least is ready. He thinks that the due-process clause guarantees only the right to procedures such as hearings and trials, and he seems unfazed about letting states criminalize birth control, gay marriage, and gay sex. The other Justices have been more guarded. The majority opinion in Dobbs insisted that the decision did not endanger gay marriage or related rights. This is the Court that decided Dobbs, though. The Justices sitting on it aren’t meek, they’ve humbled even the most oracular Court watchers, and they’ve shown more loyalty to Scalia’s dissents than to the precedents that bind them.
The world Scalia claimed to want was one with a robust democratic tradition and handcuffed judges who would keep their thoughts to themselves. But the Justices in the majority today, while repeating his cries, are doing precisely what Scalia claimed to loathe: they’re ruling like kings. Instead of relying on broad formulations and an expansive view of history, though, they’re using restraint as a weapon to get what they want. Scalia proposed that we take the crowns off judges. Now they’re sitting on the heads of his inheritors.
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