Earlier this week, Kirkus Reviews published an abbreviated version of my interview with Bruce Allen Murphy about his new biography, Scalia: A Court of One. In this longer version of the interview, Murphy and I discuss Supreme Court Justice Antonin Scalia’s background, legal writing, and judicial philosophy.
Let’s start with the basics of originalism vs. textualism. Can you explain briefly what textualism is?
Textualism is how Scalia started on the Court of Appeals and in his early years on the Supreme Court. It is use of dictionaries to figure out a dictionary-based definition of the terms used in a law or in the Constitution. What he tries to do is get an old dictionary from the founding era—often the Webster’s First American Dictionary of the English Language—to get a sense of what the founding era population era understood the words of the Constitution or Bill of Rights to Mean. Or if he’s looking at a law, he’ll look at a dictionary to make that determination.
And how is that different from originalism?
Originalism is distinct from textualism. It is the theory that Scalia has moved to over time. He wants people to believe that he has had the same unchanging theory of originalism throughout his career. But in fact his speeches and the way that he uses the theory in cases both demonstrate that his theory has evolved over time. The first version of originalism was called original meaning, and it was meant to be distinct from Robert Bork’s theory of original intent. Bork would try to understand the Constitution by looking at the interpretation of the framers of the Constitution—what was in their mind when they wrote the Constitution or the Bill of Rights.
Scalia tried to carve out a different paradigm that separated him from Bork when the two of them were being considered for the Supreme Court in 1986. Scalia’s argument was: I can get a better meaning of the Constitution or the Bill of Rights by looking at the meaning of those words in that time period, not limited to the framers of the documents. Over time, he has broadened that inquiry to searching for the understanding of the population at the time of the ratification of the Constitution and the Bill of Rights so that it allows him to look beyond just the dictionary-based definitional materials of textualism. He can look at history, he can look at letters, he can look at anything that will give him a sense of what he considers the Constitution and Bill of Rights to have meant at that time.
So if you draw a little circle inside the big circle, the little circle is textualism?
Textualism is pushed aside as his speeches go on. Every few years he gives a stump speech about his theories, and the last major speech that he gave on the theory itself was in 2005 when he was positioning himself possibly for the Chief Justiceship of the Supreme Court, and he says that he is now an originalist. But earlier, in 1996, he would say that he is a textualist and an originalist.
The tricky part here is that originalism—the bigger circle—puts him in the position of being an evaluation of historians of the founding era. You have to believe that he as a judge can make determinations of who has the best history of that period in order to be able to use those materials. That’s where he has a bit of a problem because all of the major historians of that period disagree with his use of that history and the idea that he can use history to judge constitutional law.
Has Scalia provided clues in his life for how he came to this approach?
I think that one of the foundations of this approach is the work of his father, who was an Italian immigrant professor of romance languages—and quite a good one—and did some very fine books interpreting the works of prominent Italian writers. He used what he called a theory of literalism. He was trying to show that others who had translated the Italian writers’ works were not faithful to the spirit of what the Italian writers had been offering in their native language. He was arguing that if an interpreter translates more closely to the literal meaning of the words that they will get a better meaning from the material.
Another part of the foundation is his traditional, pre-Vatican II Catholicism, the Latin-based version of Catholicism prior to Pope John XXIII’s Vatican reforms. That religion, which also was taught to him by his father, preaches a very close, literal translation of the Bible and a very focused examination of historical materials in order to understand the Bible the way the church at that time wanted its followers to understand it.
Also, there’s part of what Scalia did, believe it or not, as a national champion-level college debater. A big part of policy debate at the college level is being able to look at the resolution that the competitors are debating and try to find ways to reinterpret that to get to a position that will be most favorable for your team in persuading the judge to vote for you.
Those were some of the foundations laid down for what would become Scalia’s originalism. The interesting thing about it is that I don’t think this originalism was something that he came to the federal judiciary carrying as intellectual baggage. When you look at the four years of cases that he decided on the Court of Appeals, he uses a wide variety of theories to try to determine the results in those cases, and he was much more concerned at that point in his career with trying to stop people from using a theory called legislative intent—reading committee reports and other types of documents of what the members of Congress were saying when the law was being passed to try to determine what they were actually doing with the language of the law. Scalia thought that was easily malleable and not reliable based on his work in the Ford administration in the Office of Legal Counsel. It was only at the very end of his time on the Court of Appeals that he began to move into the area of some kind of historically based examination of the Constitution and laws, and that led to this speech at the end of his time on the Court of Appeals where he tries to differentiate himself from Bork with his theory of original meaning.
Do you view Justice Scalia’s decisions as results-oriented?
That’s a very interesting question. I think what readers will see in this book is that his theory and use of originalism evolve over time. It is partly a function of what happens on the Court when he offers his theories, tries to have others adopt those theories, and is not successful. Often he ends up dissenting. Every few years he will become frustrated with his fellow members of the Court and his position relative to them, and he will change his presentation of his theory—widening out the historical materials that he will now use to decide cases.
I think the biggest change happens after 2005 when he does not get the Chief Justiceship and he realizes that he is now approaching 70 years old: He is not going to be the Chief Justice; he is always going to be an Associate Justice. And he becomes, I think, more results-oriented in his approach. He will figure out how he wants to decide a case and then look for material that will justify that approach.
Did the people who wrote the Constitution give us much indication that they had thought about how people would read it in the future?
The only person I can think of off the top of my head was Thomas Jefferson, and he was so skeptical of the ability of a constitution to last—even for a generation—that he wrote that the Constitution should be scrapped every generation, every 25 or 30 years, and that they should rewrite the whole thing. I think it’s safe to say that the Framers of the Constitution did not think of the possibility that 230 years from the time they were writing the document that there would be nine people with the power to say what that Constitution would mean and to expect that it would be enforced by the other branches of government.
I would think if I wrote a fairly cryptic text, the easiest way to determine the accurate meaning of it would be to ask me what I meant, right?
You would think so except remember the state of historical materials that you have available to you: The best materials are the notes of the convention, which were re-edited by Madison decades later before they were actually published. My understanding is that he actually wrote one of the members of the Constitutional Convention—Pinckney of South Carolina—out of those notes [because] he was so unhappy with him. So just having access to the right amount and right type of materials to make that determination would become a difficult process.
The larger question is: Why should we be bound as a society to what the authors of the Constitution in the late 18th century had to say about what that Constitution would mean. You have a document with 27 amendments. It has been largely interpreted and re-interpreted by generations of judges and generations of Courts. The Constitution we have now survives because of that interpretation. You have the world’s oldest democratic constitution serving as a beacon for the operation of the government and the society of an enormous number of people, and you have to figure out what is the best way to adapt that constitution to the modern era.
That’s where the debate is between the originalists—and they don’t even agree on what materials to use; Clarence Thomas looks to the Declaration of Independence—and they are debating the living constitutionalists. One group is trying to freeze the meaning of the Constitution in the founding era—what some people call the “Dead Constitution” approach and what Scalia calls the “Enduring Constitution”—and another group is trying to update the Constitution for a new era and a new generation of people.
Justice Scalia would say, wouldn’t he, that a Constitution un-moored by text and historical meaning leaves itself to the whims of five justices to decide the color of the sky?
Yes. When you look at what Scalia does, he reaches the results he wants to reach and makes a determination whether or not he will even use his originalism. If he can’t get where he wants to go, he doesn’t use his originalism theory. If he uses his originalism theory, there’s a wide variety of materials and methods he can use to get where he wants to go.
If you look at the Second Amendment and the Heller case [which recognized a personal right to possess firearms], he can’t get where he wants to go using originalism alone. He has to use rather creative grammar. He has to make the first part of the Second Amendment, dealing with the militias and the security of the state, go away. Then he talks about the right to keep and bear arms. That will allow him to talk about the individual right of self-defense rather than, as John Paul Stephens writes, the collective right for which the weapons are used.
On the other hand—and this is one of the contributions of Scalia to the debate—if you look at what the living/evolving constitutionalists do, a great many of them use textualism and originalism as a touch point in order to get to their interpretation of the Constitution or the Bill of Rights. It becomes one of many methods to reach a determination of what the words mean.
Is Heller an example of where Scalia has diverged from originalism?
No, I think it’s his tour de force for how originalism can work. He really demonstrates how to use historical materials—old dictionaries—to determine the meaning of the Second Amendment and get to the result that he wants. But he does have that problem of the introductory clause of the Second Amendment. He has to figure out a way to explain to the reader that that introductory clause is not modifying the rest of the Second Amendment, so he does it using grammar.
Then he gets into a huge philosophical debate with English theorists and American judges relying on English theory as to whether or not the practice during the Blackstonian period in British legal theory was to narrow down the interpretation of a document or to expand it. That’s the kind of debate that an originalist wants to be involved in.
Is there a particular opinion where he junks originalism because it doesn’t get to where he wants?
The one that comes to mind is Hudson v. Michigan, a Fourth Amendment search-and-seizure case in which the police have a warrant to search an apartment and they are supposed to do a “knock and announce”—knock on the door and say “police, open up” and then there’s a period of time they’re supposed to wait. In this case, they knocked and kicked in the door after three to four seconds because they thought maybe drugs were being hidden or flushed down the toilet, and they did indeed find drugs when they went in to conduct their immediate search. That’s a case that begs for the use of originalism and Fourth Amendment search-and-seizure analysis.
Interestingly, Scalia is very, very good on protecting the Fourth Amendment when the searches involves the use of technology—thermal imaging or GPS attached to a car. He’s very protective of the Fourth Amendment search-and-seizure rights of a defendant. But in this case, he justified the search and wrote against the defendant. Breyer in dissent used originalism against him. That’s an example where he could have used originalism and materials from the founding era, and he probably would have had to go in a different direction.
Search-and-seizure is one of those areas where the Constitution doesn’t get you very far on application. An originalist could arguably say the Constitution doesn’t apply to electronic eavesdropping or whatever because it wasn’t around then.
An original intent scholar might go in that direction, but Scalia uses a different approach. He will try to calibrate based on the relationship between the defendant and society what the framers were trying to achieve for the balance. And then he will translate that balance that they were trying to achieve to what the government is now trying to do with its technological searches.
The best example here—and I think one of his really great dissents—is in a case called Maryland v. King, where arrestees are given a cheek swab for a DNA search and the materials are sent to the FBI to try and solve cold cases. And they are successful in figuring out that a fellow in jail in Maryland was involved in a rape. Scalia uses his originalism to say that the Framers would never have opened their mouths for royal inspection. It’s a wonderful line, and he just does a marvelous job of showing how this shifts the balance so dramatically in the favor of the state that you can just match people up to crimes they might have committed in the past, and that’s not how the Fourth Amendment was supposed to work.
Justice Scalia wrote a book in 1998 called A Matter of Interpretation: Federal Courts and the Law, and he wrote a book in 2012 called Reading Law: The Interpretation of Legal Texts. As far as his non-court opinions, are those his two writings that tell us how he thinks the Constitution should be read?
Good question. He also wrote a third book [Making Your Case: The Art of Persuading Judges] about making your argument before a court. They are the books you can look to if you were trying to figure out how Scalia has evolved over time. You would probably start with a couple of [his] law review articles back in 1989—“The Rule of Law as a Law of Rules” and his “faint-hearted Originalism” article [“Originalism: The Lesser Evil”]—and then move to Reading Law, which I think is his magnum opus. It really includes all of the things that he has been arguing throughout his career and all of the pieces of the argument that he has been making in his judicial decisions and in his appearances. You get a real sense of how he thinks a person who is trying to reach an understanding of what the law really means through all of the techniques including originalism—how that person will operate.
What is intriguing is that I think a better way to understand how he thinks about these questions is to read a variety of his speeches over the years. You get a sense of how his thinking is evolving. You come to understand that he is adapting his theory to the nature of the cases that the court is seeing, changes in the nature of the decisions that his colleagues are making, changes in the way the public sees his theory and sees his decisions. By the end, he is arguing at Harvard and at the University of Virginia in a speech called “The Methodology of Originalism,” which I think is the speech that bridges the speeches he gave in 2005 at the Woodrow Wilson Center to his Reading Law book.
By 2010, he has to persuade people that it is an acceptable role for judges and is possible for judges to evaluate among competing historians and different historical materials as to what those historical materials will mean. That is quite an evolution he made from articles he wrote in 1989 where he wrote that you can look at what the words meant in that time period. That’s probably a job better suited for historians than judges. And now 21 years later, he is arguing at Harvard Law School that it is very possible for judges—especially for him—to read different historians and to evaluate their work.
It leads to a very sharp debate that he has at that point—and Reading the Law is trying to answer this debate—with Richard Posner of the Seventh Circuit Court of Appeals, and it is a debate that continues from a 1996 book by Jack Rakove, a very prominent legal historian, as to whether what he is doing as an originalist is something called “law office history.”
This is the New Republic article?
Yes. [Richard Posner wrote a scathing review of Scalia’s Reading Law for The New Republic, Scalia called the piece a “hatchet job” and Posner a liar, and Posner wrote a response in The New Republic.] What Rakove and Posner are arguing is that, in order to do the kind of originalism that Scalia is talking about, you have to master a lifetime worth of academic work. You have to master an enormous amount of material and have it at your fingertips to evaluate what the words would mean in the minds of a very fractured population during the ratification period and then apply that understanding to the words of the Constitution or the statutes.
What Rakove and Posner are saying is: That’s not what judges [actually] do. What they in fact do is look at the volumes of briefs that they get from law offices and the historical materials that are presented to them and then select from those historical materials the quotes and ideas that they want to use to justify the results that they have in their decisions.
Scalia is being accused of slanting his interpretation of history to reach the conservative partisan results in a case. It is a charge that Scalia clearly does not like and is trying to respond to in the Reading Law book.
Can you talk about the principle of stare decisis?
Stare decisis is “let the decision stand.” It is trying to keep a judge constrained to an incremental decisional process by seeking not to overturn, if at all possible, prior precedent—to take a new case and look at the precedents that exist and not upset those precedents but try to resolve the new case in line with those precedents.
Why does the Supreme Court try to hew to precedents rather than deciding cases without regard to what they did in the years before?
My argument would be that they certainly don’t. They want to make us think as an American public that they are following stare decisis. If you were a true stare decisis judge, you would leave it to the legislature to have their laws in place unless they are totally unreasonable. You would say that previous judges have left these laws in place so you will leave these laws in place and apply them to the present circumstance.
This court and pretty much all recent Supreme Courts more often than not are very willing to find a way to selectively reinterpret earlier decisions—to get around those markers of earlier eras—to reach a new understanding of what they are trying to achieve.
The classic approach is that these decisions are not to give us guidance on future cases but to decide the case before the court. Is there a general sense in the Supreme Court that their body of law is accretive, that it is itself a body of law?
It’s an issue that is debated constantly among Supreme Court scholars. I think that what we see now is an entirely different approach to decision-making that does not seem to follow the old rules. The idea that judges find law and do not make law is how the 20th century began. The idea that judges began to make law as realists in the 1930s, the idea that judges can go beyond even precedence in a case like Brown v. Board of Education to look at social science research, is the idea of the 1950s. But in recent years—some people may date back to Bush v. Gore; I would date back to the failed Bork nomination in 1987—I think the Court has tended to decide cases based on political views and work their way back to precedence to try and justify the decisions that they are making.
The result is a polarized court. Adam Liptak of the New York Times recently wrote about this. You have five Republicans on the Court who are consistently now outvoting four Democrats, and the American public is beginning to see that. When they are polled on the Sebelius Obamacare decision as to how they think the Court would decide, the general consensus was that the would decide on politics rather than law.
In Heller, stare decisis wasn’t really a factor in the decision. It was not listed as one of the bases for how to approach making the decision.
It is by Stephens [in his dissent], who reaches a different result. The problem with the majority is that the one really good precedent—the Miller decision—goes the other way, so they have to ignore it.
I’ve looked at it. I understood what I was getting into when I started this book on Scalia. I know that Scalia has devoted followers. I know that he has defenders of his faith. It’s part of the task and the job of a biographer to understand going into a territory that there are people who have carved out that turf and are willing to defend it vigorously, and that appears to be what [Whelan] has done. I fully expect that there will be others who will see it differently.
Did Joan Biskupic get that kind of treatment with her book on Scalia?
I have not looked back to see, but she was in a different situation. She had access to Scalia and presented a great many of his views and quotations in her book. I took a different approach. It turns out in the Internet age that there is an enormous body of material on someone as public as Antonin Scalia—all of his speeches, all of his interviews, all of his public appearances are there on the web. He is constantly saying controversial things, so I was able to gather a great deal of material on his extrajudicial works and extrajudicial speeches that were incredibly helpful.
I don’t think Whalen for all of his objections to the book fully understands how much of my book relies on quotations from Scalia. I asked to see Scalia. I didn’t get a response; he wouldn’t see me. I did get a chance to talk to him at a function and was able to ask him a series of questions that I wanted to ask him.
The material I had available to me allowed me to understand what he was trying to achieve, the way he was polarizing the court by attacking his colleagues on the Court, by giving his commentary on the Court; it’s unprecedented the way he has done that. And that is something that a defender of Justice Scalia can’t deny. And there’s been absolutely no refutation of the major theme of the book, which is that the way Scalia has operated as a court of one—not being a team player, criticizing his moderate and conservative colleagues and losing their support—the defenders of Scalia can’t deny that.
If you look at the composition in the Supreme Court as it has changed during the time Justice Scalia has been on the bench, if he were playing the long game, he turned out to be right. He’s winning. He’s writing majority opinions now.
That’s an interesting point, but I don’t think I see it quite the same way. He’s been on the Court a long time, and indeed the current Court is solidly conservative—a close vote, 5-4—but solidly conservative, but the people who are driving that Court in the key cases are either Anthony Kennedy or John Roberts. Not Antonin Scalia. Yes, he writes nine or ten opinions a year because that’s how those opinions are assigned. But in a major case or a close case, he often doesn’t get that assignment because there’s some concern that he will not be able to hold the majority together.
On top of that, he is not looking at a conservative majority that is adopting his philosophy. Scalia is now just another conservative vote on the far right wing of the Court. That is important to get them their five votes, but you don’t see Roberts using originalism. You don’t see Alito using originalism. You certainly don’t see Kennedy using originalism, and in fact Kennedy is going a different way on social issues like gay marriage or the death penalty
It’s a process of watching a career that has reached what appears to be the pinnacle, but is it a pinnacle or a false summit. He delayed that process by 20 years—all of the things the Rehnquist Court did not do and now will not get a chance to do because [Scalia] was driving Kennedy and O’Connor and Souter away. You don’t know how long this Court will have that 5-4 majority. You don’t know what the 2016 election is going to be. You don’t know what the Senate is going to become.
You can say he’s played the long game and he’s won or you can look at the same evidence and say he’s been on the Court a long time and could have won even more.
Do you see Scalia preparing for a final act of being the Chief Justice he never got to be—a coalescing jurist?
Just the opposite. I think the chance for Scalia to become the driving force on the Court—the leader of the Court—went away when John Roberts was chosen to replace [Chief Justice] Rehnquist, and almost immediately Scalia went off on an extended public appearance and speech-making tour and has written in his cases in a way that indicates to me that he is trying to speak to later generations. He is trying to instruct them as to how originalism can reach these results and what views they should have on the Constitution and Bill of Rights. I think his hope is that a lot of these dissents and opinions will get into casebooks and educate future lawyers, and then maybe a generation of people down the road will look back and see that he had the right idea.
It worked for Brennan, didn’t it?
It did work for Brennan. It didn’t work for Douglas.
Anything to add?
I do want to say one more think about Whalen’s piece. When you look at what he has done, he has read the book through his lens as a defender of the Scalia faith. I don’t think he fully appreciates that the purpose of my book is to try to understand the man and to present to a general readership what he has done on and off the court. I’m trying to give a sense of how the man has developed and how his theories have developed and what some of the results of that evolution has been.
Whelan’s comments were pretty barbed for a national magazine.
I’ve been doing this a long time. This is my fourth book. I saw things with the Brandeis and Frankfurter books that were very tough. What surprised me was that he wrote them so early in the process—way before the publication date—and he wants two bites at the apple. He wants to criticize the book on his blog and then write a review about it.