This posting was originally a short speech given to students at the University of St. Thomas Law School on February 29.
We will all miss the unique and iconic personality of the late Justice Antonin Scalia. Few if any Supreme Court Justices have been gifted with such charm, humor, charisma and pizzazz. He was a man of great faith; a brilliant and memorable writer; a witty raconteur; a powerful and bracing intellect. He argued law, as he lived life, with passion and gusto. In his impact on the American public, he was in a class of his own: among the Justices of the past, perhaps only Oliver Wendell Holmes, Jr., Robert Jackson, and Thurgood Marshall can be compared to him. One might even say, with all due deference to Senator Cruz, that Justice Scalia was the living epitome of New York values.
But we are here to discuss his influence on the law, especially on constitutional law. And for all his great and varied gifts, his long tenure on the supreme bench, and the vigor and clarity of his opinions, his influence on constitutional law, at least judged from our current perspective, was very limited.
The two doctrines one associates most closely with Scalia’s jurisprudence are, of course, originalism and textualism. Others on this panel will no doubt discuss them, and I will say something about them a bit later. But what I want to consider briefly here is another important but neglected strand in his jurisprudence: his use of custom or tradition in constitutional adjudication. This aspect of his jurisprudence is, in my view, the most distinctively conservative element of it. There is no inherent connection between textualism or originalism and conservatism, but there is such a connection between custom and conservatism.
Nineteenth century legal conservatives such as James Coolidge Carter went so far as to identify law with custom. Or more accurately, they identified the common law with custom. One could say, in that spirit, that the common law identifies, articulates, stabilizes, and occasionally revises and improves, custom. And much of American constitutional law is in substance common law, though that fact is usually unacknowledged. In particular, common law, and through it custom, plays – and should play – a leading role in the jurisprudence of the First, Eighth and Fourteenth Amendments. Here I would like to draw attention to some aspects of custom in Justice Scalia’s understanding of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
In my opinion, the doctrine of substantive due process, though mistakenly rooted in the Due Process Clause, has a much truer and firmer foundation in the neglected Privileges or Immunities Clause of Section One of the Fourteenth Amendment. I read the Privileges or Immunities Clause as an invitation to the courts to engage in constitutional common law-making. Especially given the relative paucity of federal statutory law relating to civil rights when the Fourteenth Amendment was adopted, I believe that that amendment’s framers and ratifiers intended the federal courts, acting in their customary common law manner, to shield the recently emancipated slaves, newly made citizens, from oppressive and discriminatory State legislation. Justice Scalia – unlike Justice Thomas – resisted that approach. For the present purposes, though, that does not matter, because the judicial results, whether traced back to the Due Process Clause or the Privileges or Immunities Clause, should be approximately the same.
My key point here is that I think Justice Scalia got the relationship between custom and substantive due process basically right. As an example, let me cite his dissent in Lawrence v. Texas (2003), which rightly criticized the Court for its failure to anchor the application of substantive due process in laws and customs that were deeply entrenched in our Nation’s longstanding practices. The Due Process (or, better, the Privileges or Immunities) Clause, if you will, is the conservative side of the Fourteenth Amendment. It is there to serve as a common law bulwark protecting traditional, time-tested liberties from novel and unwholesome governmental encroachments.
But the Fourteenth Amendment also has a radical, indeed a revolutionary, side, that should compel the courts to review custom, or at least some custom, with the most skeptical eye. That side is the Equal Protection Clause. If the Due Process Clause was designed primarily to be a shield, the Equal Protection Clause was designed primarily to be a sword.
Historically, the Supreme Court has had a poor record with equal protection. Plessy v. Ferguson (1896) was decided essentially on the basis of the custom of the South of segregating the races. In the Plessy Court’s view, what was customary was reasonable, and what was reasonable was constitutional. Soon afterwards, in 1897, the Supreme Court made effectively the same error, over the spirited dissent of the first Justice Harlan, in its decision on the Thirteenth Amendment, Robertson v. Baldwin. And Justice Scalia, I believe, followed this mistaken tendency. Here I would cite his solitary dissent in the VMI case (1996), where he would have found no violation of the Equal Protection Clause in Virginia’s maintenance of a male-only military academy primarily because that institution had existed long before and long after the adoption of the Fourteenth Amendment. But the Equal Protection Clause, like a massive earthquake, has effects that may require years or even decades, to be fully felt. In this area of constitutional law, custom is not a strong defense.
I could try to elaborate on these brief, and perhaps enigmatic, remarks; but in the little time I have left I would prefer to conclude by reading to you part of a letter I wrote to one of our recent graduates immediately after we heard of Justice Scalia’s death. That graduate – like me, a Republican and a conservative – wrote to me to express his heartfelt grief over the Justice’s passing. And here is part of my reply to him:
Yes, we must remember and honor that great man and jurist. We will not see his like again.
In my opinion, Scalia’s death marks the end of the American conservative movement. The books are now closed on that era in our country’s politics. Conservatives achieved some of their most important goals since winning the Presidency in 1980. Notably, they defeated Communism and liberated Central Europe. But they have found no effective strategy for dealing with the main global threats that are looming now – Islamic radicalism and China.
They did succeed in restoring market economies for about forty years. But that success is about to evaporate, largely because the gains have been distributed so unequally: as Charles Murray rightly says in this weekend’s Wall Street Journal, “During the past half century of economic growth, virtually none of the rewards have gone to the working class.”
And of course culturally, the Conservative defeat has been almost total.
I think that conservatism’s failures on the cultural front are inextricably intertwined with its policies on the economic front: when families are financially in deep distress, when husbands and fathers do not have honorable employment and steady wages, the family structure will collapse – and with it, the cultural values in which conservatives believe. Indeed, I suspect that the decline in religious belief in our country owes quite a lot to the kind of capitalism we have been practicing.
For all his remarkable achievements and vivid personality, Justice Scalia too has to be judged a failure, at least in the short term. Originalism is a fossil – Obergefell is surely its Waterloo. And textualism, if not quite as dead, is nearly so – consider Justice Robert’s reasoning in the second Obamacare case, which is basically an exercise in the judicial drafting of statutes.
At least from the perspective of the present, Scalia’s most influential opinion was Employment Division v. Smith, which was of course what created the current environment of extreme danger for religious liberty. Young people may not remember this, but the Smith decision was completely aligned with the Reagan Administration’s jurisprudence of religion. The thinking then was that the Court was one-sidedly supporting minority religions (the Jehovah’s Witnesses, let’s say) while rejecting the claims of the larger religions (the Catholics, the Southern Baptists) that had the clout to affect politics and culture. Hence, the reasoning went, the Court should open the sluices for majoritarian politics in the area of religion – which Smith attempted to do. What the Reaganite analysis did not foresee was how much sway the big churches would lose in the political arena in the ensuing decades. Now those denominations have to operate in a political environment largely populated by the hostile and unchurched; they are carrying the stigma of major recent political defeats; they have the unenviable task of explaining why they are “against equality” for women and gays; and they do not have the comfort of a protective Free Exercise constitutional jurisprudence.
I am not saying this to demean Justice Scalia, or indeed anyone in the conservative movement. I was a foot soldier in it myself. Just three years before Scalia was appointed to the Court, I joined with two good friends in founding a Federalist Society chapter at Harvard Law School. We were the first, or after Chicago maybe the second, chapter of that brand new society. And I went to work for the Reagan Administration’s Civil Rights Division in 1986. Some stood at the Hot Gates, and I was one of them. But human history is a record of cruel ironies and unexpected reversals. The point is to pick ourselves off the floor, take a hard, clear-eyed view of where we now are, and resume the fight again, but for new causes and against different enemies. And actually, I am guardedly optimistic.