Justice Scalia’s legacy

Much has been made of Justice Antonin Scalia’s recent death. Conservatives view his death as a great loss for America and the U.S. Supreme Court. Liberals view it as an opportunity to add another progressive voice to America’s highest court. Unquestionably, Scalia had a significant impact on American law over the last 30 years. It is unclear how lasting that impact will be as many on the left and now some on the right are pushing an agenda that is inconsistent with his approach to constitutional interpretation. This should be of great concern to all who value the rule of law, representative democracy, separation of powers and federalism.

When President Reagan appointed Scalia to the Supreme Court in 1986, the prevailing orthodoxy in the legal academy and the federal courts was that the Constitution was a “living” document that has no fixed meaning other than that which was given to it by a majority of Supreme Court justices at any given time. Essentially, justices struck down those state laws with which they disagreed under the guise of constitutional interpretation. For decades, liberal activists used this approach to get unelected federal judges to undermine state laws related to abortion, gun ownership, the death penalty, school prayer, criminal procedure and many other issues.

Scalia rejected this approach. He famously stated that he preferred his Constitution to be “dead.” In saying that, he meant that the words of the Constitution have a fixed meaning and a justice’s own personal or political views should not be the basis for changing what the Constitution means. University of St. Thomas Law Professor Michael Stokes Paulsen recently wrote that Scalia consistently demonstrated a “faithful adherence to the rule of law.” According to Paulsen, in the context of constitutional interpretation, Scalia showed “fidelity to the original public meaning of the words, phrases, and structure of the Constitution’s text, understood in historical and linguistic context.” This commitment to text and originalism was part of Scalia’s great legacy. Today, many federal judges and law professors no longer adhere to the concept of a malleable “living” Constitution but must address the text and meaning of actual words of the Constitution when interpreting it.

Scalia was an adherent of the twin constitutional doctrines of separation of powers and federalism. The separation of powers was intended to ensure that each branch of government was limited to exercise only those powers explicitly granted to it by the Constitution. The legislative branch has the power to make public policy by enacting statutes. The executive branch is charged with executing and implementing the laws enacted by the legislative branch. The judiciary is charged with the duty of case adjudication by interpreting and applying the laws in a neutral fashion. Scalia knew that the checks and balances included in the Constitution effectively limited any branch from accumulating too much power which would jeopardize individual liberty.

Similarly, the doctrine of federalism clarifies that the federal government has specific and enumerated powers and, as defined by the 10th Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Scalia knew that the Constitution’s structure meant that the federal government had limited powers, thereby protecting the states from federal encroachment. Scalia recognized what James Madison wrote nearly 230 years ago that the separation of powers and federalism created a “double security” protecting the “rights of the people.”

While Scalia’s impressive work on the court along with the work of several others, including the late Chief Justice William Rehnquist, current Justices Clarence Thomas and Samuel Alito as well as scholars like the late Robert Bork, have had a significant impact in reestablishing fidelity to the original meaning of the Constitution, that legacy may be short-lived.

In recent years, libertarian activists, who in the past have often sided with the conservative approach, are now pushing to achieve their political goals by going straight to the federal courts to achieve policy outcomes they could not get through the traditional legislative lawmaking process.

The columnist George Will is an exponent of achieving these libertarian “free market” outcomes via judicial fiat. Just a few days after Scalia’s death, Will wrote that “America’s most interesting and potentially consequential argument about governance is not between conservatives and progressives but among conservatives,” concerning “the proper scope of judicial supervision of democracy.” Will noted that Scalia “worried” about “the power of appointed justices to overturn the work of elected legislators.” But Will argues the opposite: that courts may be too “deferential to legislative majorities.”

Just a week before Scalia’s death, Will demonstrated his hostility toward the twin constitutional doctrines of separation of powers and federalism that Scalia and Madison held so dear. Will wrote that the U.S. Supreme Court should take up a case involving a challenge to a Connecticut law that limits the performance of certain teeth whitening procedures to licensed dentists.

In the case at issue, the Connecticut Dental Commission argued that there are legitimate public policy reasons to limit certain teeth whitening procedures to dentists, including patient safety issues. The non-dentist teeth whiteners who challenged the Connecticut law argued that there is no legitimate reason to limit teeth whitening procedures to dentists. The Second Circuit ultimately upheld Connecticut law noting that it is not the role of the federal judiciary to weigh the merits of the public policy arguments related to state officials’ decisions regarding state health care laws and regulations.

Will, however, disagrees with the Second Circuit, arguing that the Supreme Court should strike down Connecticut law. To bolster his argument, Will points out that it would be legitimate for the court to strike down a law that abridges free speech rights. Of course, Will is absolutely right about that but he doesn’t explain what right is being violated by the state of Connecticut’s law. Is it the constitutional right to bleach the teeth of others? I can’t find that one in my copy of the Constitution.

The stakes of this case are bigger than just teeth whitening. As Madison and Scalia so eloquently pointed out, within our republican form of government, the Constitution specifically limits the power of each branch of government and the authority of the federal government vis-a-vis the states in order to protect against federal expansion at the expense of individual liberty and the states’ role in American governance. Disregarding these limits gives the federal judiciary new unchecked lawmaking authority at the expense of the states and ultimately the American people. Will and the libertarian judicial activists are essentially arguing to turn the system Madison helped to create and Scalia worked to defend on its head.