Get over it!

Corey Robin

  • American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia by Joan Biskupic
    Farrar, Straus, 434 pp, $28.00, November 2009, ISBN 978 0 374 20289 7

Elena Kagan, Barack Obama’s nominee to replace the retiring Supreme Court justice John Paul Stevens, is scheduled to appear before the Senate Judiciary Committee in late June. Before she is confirmed by the committee, she will have to answer questions about her views on the constitution and her lack of judicial experience. One question she probably will not be asked, however, is what she meant by a statement she made about Justice Antonin Scalia in February 2007: ‘He is the justice who has had the most important impact over the years on how we think and talk about law.’ Next to Clarence Thomas, Scalia is the most conservative justice on the Supreme Court. Kagan is a Democrat and, we’re told, a liberal. Was she including herself in this claim? If so, how exactly has Scalia influenced her? If not, what does she think of his influence on others?

You won’t find answers to these questions in Kagan’s published work. She has had tenure at Harvard and the University of Chicago; she was the first woman to serve as dean of Harvard Law School and later as solicitor general of the United States. Yet we have no idea of her political convictions. That’s not unusual in a politician but a scholar with her record usually has a voluminous record of positions taken and arguments advanced. In an academic career of nearly two decades, Kagan has written (or cowritten) exactly four full-length scholarly articles and several shorter pieces, few featuring a distinctive or even audible personal voice. Jeffrey Toobin, the New Yorker’s legal correspondent, has known Kagan since they were first-year law students; he admits that ‘her own views were and are something of a mystery’ to him. ‘On the court,’ he adds, ‘Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.’ Tom Goldstein, the publisher of the SCOTUSblog, devoted to the goings-on at the Supreme Court, says: ‘I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.’ David Brooks, the conservative New York Times columnist, gets it right: ‘She seems to be smart, impressive and honest – and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.’

Whatever her own views may be, Kagan is correct in her assessment of Scalia’s impact. If she’s a weather vane, he’s the weather. It’s not that Scalia’s particular positions have prevailed on the court. Some of his most famous opinions – against abortion, affirmative action and gay rights; in favour of the death penalty, prayer in schools and sex discrimination – have been dissents. His hand is more evident in the way his colleagues – and other jurists, lawyers and scholars – make their arguments.

Since he was appointed by Reagan in 1986, Scalia has been the most high-profile advocate of a school of jurisprudence known as originalism. Originalists hold that the words of the constitution mean what they meant when they were written and adopted into the text; judges must remain faithful to those original meanings, even if they run counter to contemporary manners and mores. This position, formulated by conservatives in response to the liberal jurisprudence of the 1960s and 1970s, has long been criticised by the left. As William Brennan, the liberal titan of the court in the second half of the 20th century, declared in 1985, ‘Those who would restrict claims of right to the values of 1789 specifically articulated in the constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.’ Against the originalists, Brennan insisted that ‘the genius of the constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.’

Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, wrote: ‘We are all originalists now.’ That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy – Rawls, Hart, occasionally Nozick, Marx or Nietzsche – to interpret the constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not only on the right. Bruce Ackerman, Akhil Amar and Jack Balkin are just three of the most prominent liberal originalists writing today. Liberals on the court have undergone a similar shift. In his Citizens United v. Federal Election Commission dissent, Stevens wrote a lengthy excursus on the ‘original understandings’, ‘original expectations’ and ‘original public meaning’ – all words drawn from the originalist lexicon – of the First Amendment with regard to corporate speech. Stevens felt compelled by Scalia, to whom he referred several times, to demonstrate that the Framers did not believe that corporations had the same right to freedom of speech as individuals. Other scholars and jurists, not to mention the rightward drift of American politics since the Reagan era, have helped bring about this shift, but it is Scalia who has kept the originalist flame lit at the highest reaches of the law.

So the real question surrounding Kagan’s confirmation – and that of all nominees to the court in the foreseeable future – is: has Scalia influenced their views? If so, how, and if not, how would they argue against him? The rest is commentary.

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