Recently published, in the current issue of the Harvard Journal of Law and Public Policy, Craig S. Lerner (George Mason University – Antonin Scalia Law School): Justice Scalia's Eighth-Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism (42 Harv. J.L.P.P 91 (2019)). From the introduction:
This Article analyzes the tension between originalism and precedent in a politically and morally fraught context: the Eighth Amendment. By the time Justice Scalia joined the Supreme Court in 1987, the jurisprudence in this area, particularly with respect to the death penalty, had swollen into a thicket of precedents. And in an important sense, all of these precedents claimed Trop [v. Dulles] as their distant, or not-so-distant, ancestor. How is an originalist to reconcile the conflicting demands of the Constitution on the one hand and these precedents on the other? Justice Scalia’s contention that the Eighth Amendment forecloses only those modes of punishment considered cruel and unusual in 1791 complicates the question. Consider that punishment practices in 1791 were often barbaric when viewed from the predominant modern perspective. When confronted with the choice between the original meaning of the Constitution and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?
Academics critical of originalism as an interpretative methodology have long focused on the inability of originalism to account for, let alone justify, deeply entrenched, but dubiously originalist precedents, such as the Legal Tender Cases, International Shoe Company v. Washington, a litany of New Deal cases, and, most significantly, Brown v. Board of Education. Justice Scalia’s willingness to defer to these precedents highlighted, for these scholars, the opportunism of his originalism, the way it provided “rule of law” cover for the promotion of a conservative political agenda. Curiously, several scholars sympathetic to an originalist methodology have also criticized Justice Scalia’s jurisprudence in this regard. Nelson Lund and Randy Barnett have attacked what they regard as his inconsistency in stridently adhering to the Constitution’s meaning in some cases and then humbly deferring to nonoriginalist precedents in others—with scarcely an explanation of why some precedents deserve respect and others should be overruled.
In a lecture delivered in 1988, Justice Scalia invited precisely this criticism, by implying that (in an Eighth Amendment context) he was only a “faint-hearted originalist.” This concession would become, over the next three decades, Exhibit A in any prosecution of Justice Scalia for inconsistency and hypocrisy. Seldom noted, however, is that after making this concession, Justice Scalia seemed to withdraw or, at a minimum, qualify it. At least in Justice Scalia’s own mind, he was not so much a “faint-hearted originalist” as a judge who ordinarily could reconcile the demands of the Constitution with even unprincipled nonoriginalist decisions, such as Trop. He wrote:
The vast majority of my dissents from nonoriginalist thinking (and I hope at least some of those dissents will be majorities) will, I am sure, be able to be framed in the terms that, even if the provision in question has an evolutionary content, there is inadequate indication that any evolution in social attitudes has occurred.
In other words, Justice Scalia argued that, at least in the context of the Eighth Amendment, he often could accept even the grotesquely nonoriginalist Trop as good law (that is, he could accept for the sake of argument that the Eighth Amendment has evolutionary content) and still prevail in upholding the Constitution’s meaning. Thus, he suggested that he was a “pure-originalist[]-accepting-for-the-sake-of-argument-evolutionary content.”
This Article is the first to use this framework to consider Justice Scalia’s Eighth Amendment jurisprudence. Justice Scalia anticipated that his opinions would be framed as arguments in the alternative: first, that the Eighth Amendment, properly understood, did not foreclose a punishment; and, in the alternative, that even if nonorginalist precedents were followed, the result would be the same, because there was “inadequate indication that any evolution in social attitudes has occurred.” “Sake-of-argument originalism” was Justice Scalia’s ingenious solution to the “dilemma of constitutional originalism,” at least in the area of the Eighth Amendment. The dilemma could be resolved by seamlessly reconciling originalism and precedent. Given this Article’s title, there is no spoiler alert needed before announcing that this solution failed—both objectively and by Justice Scalia’s own estimation. This Article illustrates why and what lessons might be drawn, particularly for those sympathetic to an originalist methodology.
Also in the issue: Essays from the Thirty-Seventh Annual Federalist Society National Student Symposium, with contributions from Clint Bolick, Randy Barnett, Lee Strang, Kurt Lash, Edward Whelan, John Mikhail, John Yoo and John McGinnis.
Posted at 6:25 AM