Justice Antonin Scalia: Part-Time Activist

Presumptive Republican presidential candidate Donald Trump, to establish his bona fides with conservatives, has released a list of eleven potential Supreme Court nominees.

He added, with typical understatement: “If Hillary Clinton, for some reason, wins, your country will never be the same because she’s going to put disasters in the Supreme Court.”.

Mr. Trump said that his top priority was to pick “originalists” in the mold of the late Supreme Court Justice Antonin Scalia, whose seat on the Court remains vacant.  As discussed in a previous blog, Republicans have long praised Justice Scalia for embodying the judicial philosophies of originalism and judicial restraint, which are based upon a strict adherence to the literal wording of the United States Constitution, a deference to the will of the people as embodied in the legislature, a reluctance to declare laws unconstitutional, and a respect for state sovereignty.  The phrase “judicial restraint” is contrasted by conservatives with “judicial activism,” which they use as a pejorative to indicate judges who ignore these fundamental limiting principles and act as legislators.

What has largely been lost in the political discussions surrounding Justice Scalia is the extent to which the Justice himself seemed, often, to abandon principles of judicial restraint.  Here are just two examples of Justice Scalia as Judicial Activist:

1. Bush v. Gore (2000). On December 8, 2000, the Florida Supreme Court, interpreting Florida election law, ordered a Florida statewide recount of the vote for President.  On December 9, the United States Supreme Court halted the recount with a stay order.  Three days later, on December 12, the Supreme Court ended the recount and effectively declared George W. Bush to be President-Elect of the United States.  The court ruled that the Florida Supreme Court’s decision calling for a statewide recount violated the Equal Protection Clause of the Fourteenth Amendment, because there was no clear standard for determining what was a “legal vote.”  Because no constitutionally valid recount could be completed by the deadline for participating in the federal electoral process (which it declared to be that same day, December 12), the recount could not proceed.

The five justices who both voted for the stay order and then joined in the decision to end the Florida recount (of whom Justice Scalia was reportedly the most vocal during deliberations) were all considered proponents of judicial restraint who advocated for deference to states’ rights and a narrow interpretation of Equal Protection Clause.  Article 2 of the Constitution gives each state the right to determine how its representatives to the Electoral College are chosen, and different states had used different methods and standards, without objection, for two centuries.  Yet the Supreme Court interrupted, midstream, a state court’s application of state law, then declared that the state court’s methods were improper and that it was now too late to devise an appropriate method.

Justice John Paul Stevens wrote a dissent, joined by Justices Breyer and Ginsburg, which argued that the majority opinion showed a disturbing disrespect for state law:

What must underlie [Gov. Bush’s] entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.  Otherwise, their position is wholly without merit.  The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land.  It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.  Time will one day heal the wound to that confidence that will be inflicted by today’s decision.  One thing, however, is certain.  Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear.  It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Justice Scalia later commented that “the only issue was whether we should put an end to it, after three weeks of looking like a fool in the eyes of the world.”  This type of results-oriented approach is usually criticized as “judicial activism.”

2. Shelby County, Alabama v. Holder (2013). Justice Scalia voted to strike down Section 4 of the Voting Rights Act, which had been signed into law in August 1965, a few months after people marching for voting rights were attacked by local police on the Edmund Pettis Bridge in Selma, Alabama.  Section 4 of the Voting Rights Act established a “coverage formula” for identifying jurisdictions where voting rights had been restricted.  Section 5 then prohibited those jurisdictions from implementing any change affecting voting practices or procedures without preapproval from the United States Attorney General or the United States District Court for the District of Columbia that the change had no discriminatory purpose or effect.  The act, including sections 4 and 5, had been reauthorized (and expanded) five times, most recently in 2006 by a vote of 98-0 in the Senate and 390-33 in the House.  The bedrock principle of judicial restraint is deference to the will of the people as expressed through the acts of their elected officials.  But, during oral argument, Justice Scalia seemed to discount the near-unanimous reauthorization of the Voting Rights Act just seven years earlier:

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same….  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It’s been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

Justice Scalia later added:

I don’t think there is anything to be gained by any Senator to vote against continuation of this act.  And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution…  [T]his is not the kind of a question you can leave to Congress….  Even the name of it is wonderful: The Voting Rights Act.  Who is going to vote against that in the future?

His criticism of societal and political adoption of “racial entitlements” reflects a surprising lack of judicial restraint toward acts of Congress.  In a 1979 essay, then-Professor Scalia had written that “the legislature would seem a much more appropriate expositor of social values” than the judiciary.  In the 1990 euthanasia case Cruzan v. Missouri, Justice Scalia wrote that “it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish [to end a life] will be honored.”  In 2013, however, he declared that protecting voting rights was “not the kind of a question you can leave to Congress.”

Real life rarely fits comfortably into mutually exclusive categories.  As selecting the next Supreme Court justice moves forward, it is worth understanding that the choice between an “originalist” and an “activist” is not so much about black or white, but shades of gray.