Thursday, October 15, 2020
Scalia, SCOTUS, Originalism, & Politics
In regards to the confirmation hearings for Supreme Court nominee Amy Coney Barrett and her "qualifications" for the role, there are really only two considerations for me: a candidate who is a qualified jurist and the Senate understanding its role to advise and consent. With those two conditions, the public circus around the issue should end hopefully soon with Barrett's appointment to the Court. Granted, I am traditionalist who stands on precedent, and to that end I would have preferred two things to happen: one, for the Senate to delay the hearings until after the January inauguration of the next president, and two, for the nominee to be a bit older and have more years of experience on the Bench. Alas, neither is to be, and that's OK. However, the public discussions of Barrett's judicial philosophy and the influence of Antonin Scalia on her thinking has many people talking about Scalia and his legacy which will be nothing less than profound.
Antonin Scalia is undoubtedly an intellectual giant in terms of judicial philosophy, and his professed belief in Constitutional originalism will have every bit as significant an effect on the Court as the years of Warren Berger did. However, with the discussion of originalism raging on Twitter and talk-media, I have a a few qualifying thoughts. Specifically, Scalia's position is valid and relevant and really quite thoughtful, if not brilliant. There is much to like and believe about it, at least as much as there is about the Berger Court's work in the idea of the "living Constitution." In all honesty and fairness, Berger can also be considered an originalist, if not at least a textualist (likely influencing Scalia's philosophy), and whose work could accurately be described as "living originalism." That said, my concern and criticism of the Scalia impact is based on the ideas that in numerous cases Scalia was not, in fact, the originalist he claimed to be, that he did quite literally legislate from the Bench in ways he and others have criticized others, and that his beliefs in no way put the Court and its rulings above politics but actually were quite political and in reality politicized the Court as much as Berger and much more than others like Holmes.
Some key moments in Scalia's non-originalist legislating are, of course, the Citizen United case on campaign finance, the Heller case on the second amendment and private ownership of firearms, and finally the unprecedented and quite inappropriate meddling of the Court in the 2000 election Florida recount. I simply cannot find a justifiable originalist argument for the belief the corporations are people and that money equals speech. Corporate personhood could never have been fathomed at the time of the Constitution's drafting in the manner that it exists today, and it was in no way intended to be included in the Constitution's "We the People ..." If Scalia bases his beliefs that the document should be applied with its "public meaning," then he would never have supported corporations retaining the same personal rights as an individual voter and taxpayer, and he would never have confirmed freedom of speech rights on monetary gifts. In fact, in light of today's absurd money machine fueling political campaigns an originalist would be more likely to equate campaign "donations" as nothing short of legalized bribery.
As far as Heller goes, I'm still waiting for a Republican (and I say that by distinguishing conservatives from the political party) to explain how Scalia's clear political victory was an originalist position. Both Justices John Paul Stevens (and Steven Breyer) and Antonin Scalia crafted "originalist positions," and I can't fathom how Scalia's is "more originalist" or better originalist than Stevens' or Breyer's. The textual reference to "a well-regulated militia" and the correlation to "the security of the state" is so clearly the foundation of the rights and subsequently so far removed from private home handgun ownership that it's tough to see how Scalia could circumvent it, how he could claim an originalist view, and how Republicans and the NRA can reconcile that as anything other than a political and legislative application of a living Constitution. Additionally, the case was decided 5-4 between two "originalist arguments," so how can that be anything but political when the Court was so clearly divided along the political leanings that both parties have aligned to the justices. Impartial, objective, and unbiased readers of the case? Hardly seems accurate, does it? Finally, the Florida recount was pure politics, plain and simple.
So, while I have a genuine appreciation for Scalia and the ideas of originalism/textualism, I remain disappointed by the actual politics behind the curtain of Scalia's impact and intention. And that doesn't mean that I oppose Barrett's nomination, or Scalia's for that matter. Again, the bar is qualified jurist, and they both meet that standard. It's the politics and the disrespect for the tradition and the institution that is most troubling. I've grown weary of it, and it's one of the few things that leaves me less than hopeful about the continued promise of the United States.