The Originalism Blog

The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law

January 29, 2017

David Dorsen on Scalia as Part-Time Liberal
Michael Ramsey

In the Washington Post, David M. Dorsen: Antonin Scalia, part-time liberal.  (The essay lead-in notes that Mr. Dorsen is the author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions,” to be published by Cambridge University Press on Feb. 24.)  From the introduction:

As President Trump prepares to name a successor to Justice Antonin Scalia, the conventional wisdom is that the choice will not change the liberal-conservative balance on the court. After all, this argument goes, if Trump chooses any of the names on his previously published list, the court and the country will simply be swapping one conservative justice for another.

That understanding is incorrect and, as the Senate considers Trump’s nominee and the impact on the court, could be dangerously misleading. This will come as a surprise to many, but in a number of important areas, including the rights of criminal defendants and freedom of speech, the justice was actually quite liberal, as that term is commonly applied. Of Scalia’s approximately 879 opinions, including comments on denials of petitions for certiorari, I have counted 135 as liberal and a number of others as arguably liberal.

One might add in as well cases that seemed "conservative" at the time they were written but now have a more liberal valence,  For example, Employment Division v. Smith was reviled by liberals when decided (1990), when it seemed to withdraw constitutional protection from minority religions; but it is now the case that allows "liberal" states to require conservative Christians to comply with laws counter to their religious beliefs.  And Printz v. United States, equally reviled by liberals for protecting pro-gun rights states from federal commandeering, is now the bulwark protecting sanctuary cities from the Trump administration.

(Thanks to Michael Perry for the pointer).

At NRO, Adam Klein comments: Antonin Scalia, Full-Time Originalist.  He concludes:

To some extent, Dorsen’s article performs a useful service by highlighting (particularly for the Post’s many left-leaning readers) that Justice Scalia followed his originalist commitments to their logical ends, regardless of whether the result aligned with his personal policy preferences. These decisions give lie to the canard that the justice’s originalism was merely a pretext for him to achieve conservative policy outcomes.
 
Unfortunately, the piece makes the all-too-common error of classifying judicial decisions by their policy consequences — a valid metric for grading legislators, not judges — rather than their reasoning. Justice Scalia was a full-time originalist, and that’s what explains both his “conservative” and his “liberal” opinions.
 
I am not as put off as is Adam Klein by the essay's classification scheme.  I think it's not merely useful, but incredibly important, to refute the stereotype of Scalia as the unwavering arch-conservative.  For that reason, Dorsen's book may be one of the most significant published on Scalia.  But I agree it is disappointing that — at least in the essay — Dorsen makes little effort to explain why Scalia ended up with so many liberal results.  Dorsen uses the word "originalist" only once, without explanation and paired with "conservative"; he says Scalia's "jurisprudence" sometimes led him to liberal results but does not discuss that jurisprudence at all.  (One hopes the book does a better job on this count).  Thus the essay ends up obscuring what should be its central point: originalism may lead to liberal results.  Of course it does not do so as often as liberal living constitutionalism, but it does so much more often than conservative living constitutionalism. 

Posted at 6:00 AM