After Scalia: Not just
Who? but What?
Greg Sakall
Topics to Discuss
• Scalia’s interpretive philosophies & his impact on the Court
• The impact of Scalia’s death on the Court
– Statutory & Constitutional Interpretation
– Pending Cases
– Future Cases
• Another Harvard Nominee
– Merrick Garland
Antonin “Nino” Scalia
• Harvard Law
• Associate Justice U.S. Supreme
Court:
– September 26, 1986 – February 13,
2016
– 15th Longest-Serving Justice
• Between 1986 and 2014, Scalia
was the deciding vote on 342
decisions, and voted on the
“conservative” side 284 times in
these decisions.
• Conservative icon & author
He Served on Conservative Courts
But He Generally Wasn’t the Most
Conservative Justice
His Concurrences
His Dissents
• Colorful
– Argle-bargle
– Pure Applesauce
– Jiggery-pokery
• Powerful
– "We disagreed now and then,
but when I wrote for the Court
and received a Scalia dissent,
the opinion ultimately released
was notably better than my
initial circulation."
– Justice Ginsburg
The Result: We Talk About Him
Scalia’s Interpretive Philosophies
• Scalia’s official
portrait
• Importance of:
– Webster’s Second
(1934)
– The Federalist Papers
Textualism & Originalism
Statutory Interpretation:
Textualism
Questions of Interpretation
• How would you go about resolving the following question:
• Does an ordinance that says that “no person may bring a
vehicle into the park” apply to an ambulance that enters the
park to save a person’s life?
– Scalia & Garner: Reading Law: The Interpretation of Legal Texts, 2012.
Plain Meaning
• Statutes are to be interpreted using the ordinary meaning of the
language of the statute.
• In other words, a statute is to be read word for word and is to be
interpreted according to the ordinary meaning of the language,
unless a statute explicitly defines some of its terms otherwise or
unless the result would be cruel or absurd.
Purposivism
• Determining and interpreting
the purpose of a statute is
paramount.
• Interpret an enactment (i.e.,
a statute, part of a statute, or
a clause of a constitution) in
light of the purpose for which
it was enacted.
• Strong vs.
– Weak: Resolving ambiguities
Textualism
• Reaction to focus on legislative purpose
• To attribute purpose as a historical matter is almost absurd: When
it comes to legislative intent, Scalia insisted that there’s no there .
– Modern legislature: Compromise & committees
– Limited role of judiciary
• Scalia: “look for meaning in the governing text, ascribe to that
text the meaning that it has borne from its inception, and reject
judicial speculation about both the drafters’ extra-textually
derived purposes and the desirability of the fair reading’s
anticipated consequences.”
Textualism
• Text & nothing but the text.
– Clear text is clearly binding, except perhaps for scrivener’s errors.
– Canons of construction
– Dictionary definitions
– Applying abstract, general rules without concern for the results in the
particular case.
• So how would Scalia resolve the ambulance case?
– Common-law defense of necessity
Result & Remedy
• Result: Conservativism
– “Textualism hobbles legislation—
and thereby tilts toward ‘small
government’ and away from
‘big government,’ which in
modern
America
is
a
conservative preference.”
– Judge Richard Posner
• Remedy: Amend the statute!
Legacy of Textualism
• It will probably be Scalia’s intellectual legacy.
• All SCOTUS justices except Breyer are to varying degrees
textualists.
– “We are all textualists now.”
– Justice Kagan, (December 2015)
Constitutional Interpretation:
Originalism
Living Constitution
• The Constitution is a living document
that should be interpreted to reflect
fundamental underlying principles such
as "human dignity" as well as the values
of a given era that might not be
expressly stated in the Constitution.
• "For 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.“
– Justice Brennan
Originalism
• Reaction to Warren Court
and Living Constitution
• “The Constitution is dead. It’s
dead, dead, dead.”
– Scalia, at SMU (2013)
• Interpret
Constitution
according to the Foundingera “public meaning” of the
Constitution and the Bill of
Rights as understood by the
people in the state ratifying
conventions.
Originalism’s Justifications
• It comports with the nature of a constitution, which binds and
limits any one generation from ruling according to the passion of
the times.
• It supports legitimate popular government that is accountable
and accords with the constitutional purpose of limiting
government.
• It limits the judiciary.
Remedy
• We might have covered ourselves
with honor today, by promising all
sides of this debate that it was theirs
to settle and that we would respect
their resolution. We might have let
the People decide. But that the
majority will not do. Some will
rejoice in today’s decision, and
some will despair at it; that is the
nature of a controversy that
matters so much to so many. But
the Court has cheated both sides,
robbing the winners of an honest
victory, and the losers of the peace
that comes from a fair defeat. We
owed both of them better. I
dissent.“
– U.S. v. Windsor (Scalia, dissenting)
Another justification of originalism
• It is not, necessarily, resultoriented.
• It can be an interpretive
method for conservatives
and liberals who favor judicial
restraint.
– Justice Hugo Black
– D.C. v. Heller (2008) – Second
Amendment
– Scalia v. Stevens
Scalia’s “Liberal” Rulings
• Flag burning
– First Amendment: Texas v. Johnson (1989)
• Confrontation Clause
– The Sixth Amendment's Confrontation Clause gives defendants the right to
confront witnesses and cross-examine their testimony. Crawford v.
Washington (2004)
• 4th Amendment Cases
– Warrant: thermal imaging of house. Kyllo v. U.S. (2001)
– Warrant: GPS surveillance. Jones v. U.S. (2012)
Jones v. U.S. (2012)
• Jones was arrested on Oct. 24, 2005, for drug possession after
police attached a tracker to Jones's Jeep -- without judicial
approval -- and used it to follow him for a month.
• Did this violate the 4th Amendment?
– The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
Jones continued
• Prior 1967 case—Katz—4th Amendment protects persons from
unreasonable searches & seizures where the person has a
“reasonable expectation of privacy”
– Subjective and
– Objective: Is this an expectation that society is prepared to recognize as
reasonable?
• Does this change your analysis of Jones?
Jones continued
• Unanimous decision, with fractured justifications
– Scalia for 4 justices: 4th Amendment is tied to common-law trespass at
time of Founding; this was a trespass; thus, warrant required
– Sotomayor: critical 5th vote: yes, trespass occurred; Katz expanded 4th
Amendment to privacy; need to reconsider third-party doctrine (US v Miller
(1976))
– Alito for 4 justices:
legislative fixes
no trespass here; Katz has problems but allows for
• Scalia’s death: A new justice replacing Scalia could alter our 4th
Amendment jurisprudence, especially the third-party doctrine
Legacy of Originalism
• It will fade away. The Supreme Court is virtually the only
significant audience for originalist constitutional arguments, and
it is unlikely to be much interested anymore with Justice Thomas
as the sole remaining originalist.
– Prof. Eric Posner, Univ. of Chicago
• It will continue as lower court judges, conservative political
movements, and the legal community outside the courts, remain
interested.
– Prof. Jack Balkin, Yale
• It was never really that important as it was always just “window
dressing” intended to justify decisions that were actually based
on political agendas.
– Prof. Eric Segall, Georgia State
Legacies of Originalism
• Judicial modesty
– Judges generally do not advocate for seeing the Constitution as a vehicle
of social change
• No one now advocates for a living Constitution – search for new
phrase
– “Constitutional fidelity” – CA Supreme Court Justice Goodwin Liu
– Breyer: “The Court should regard the Constitution as containing
unwavering values that must be applied flexibly to ever-changing
circumstances."
Scalia’s Death:
Pending Cases
Pending Cases
• Immigration: US v Texas
• Public-sector unions fees: Friedrichs
• Affirmative action: Fisher; Univ of Texas
• Obamacare, Contraception & RFRA: Little Sisters of the Poor
• Abortion: Hellersted
• 3 Class Actions cases
Possible outcomes
• Argued cases assigned to Scalia: Per curiam decision?
• Reargument; hold the case over to next term
• 4-4 split & affirmance the lower court
– Confusion in some cases: Little Sisters of the Poor
Scalia’s Death:
Future Cases
Future cases
• It will affect cases that parties choose to bring
• For example, some argue Scalia played a key role in moving
American law in a more corporate-friendly direction.
• Dow Chemical paid $835M to settle a class action case shortly
after Scalia’s death because . . .
– With the untimely, unfortunate death of Justice Scalia, it leaves in question
the current structure of the court,” Dow Chemical spokeswoman Rachelle
Schikorra told WSJ. “With this changing landscape, the unknowns, we just
decided to put this behind us.”
Future cases without Scalia
• First Amendment: He deferred to the democratic majority on
issues of compelled speech and religious freedom.
– Smith (Free Exercise) & Town of Greece (Establishment)
• Corporate personhood: Citizens United & Hobby Lobby
• He opposed the principle that parents have a constitutional right
to the upbringing and education of their children.
• Second Amendment: Heller was 5-4
• Eighth Amendment: death penalty; Glossip
A Harvard Man:
Merrick Garland
Garland’s Judicial History
• D.C. Circuit Judge since 1997; Chief Judge since 2013
– C.J. Roberts: “any time Judge Garland disagrees, you know you’re in a
difficult area.”
• Garland (1995):
“[f]ederal judges do not have roving
commissions to solve societal problems. The role of the court is to
apply law to the facts of the case before it.”
• Not seen as a textualist or as having an academic theory diving
his jurisprudence.
– Centrist; deciding each case on its facts.
Garland’s Judicial History
• He rarely votes in favor of criminal defendants' appeals of their
convictions. He adopted the position that was more favorable to the
government than liberal members of same bench.
• He favors deference to agency decisionmakers.
• In environmental cases, he has been most willing to disagree with
agency action.
• He has favored civil rights plaintiffs receiving an appropriate day in
court.
• He has tended to take a broader view of First Amendment rights.
• He has generally rejected assertions of constitutional rights.
Garland’s Judicial History
• His rulings on standing are not easily categorized.
• On FOIA cases, he has a preference for open government.
• Second Amendment: Voted to rehear Heller
• Election financing:
– 2008: jointed decision saying FEC wasn’t doing enough to implement
Mcain-Feingold
– 2015: authored unanimous decision to uphold a ban on government
contractors making political contributions
Scalia’s Replacement?
• Predictions?