In the New York Review of Books, Noah Feldman (Harvard) reviews The Essential Scalia (Edward Whelan & Jeffrey Sutton, eds.): The Battle Over Scalia’s Legacy (but mostly making the point, as summarized in the subhead: "The late justice advocated judicial restraint, textualism, and originalism, but conservative jurists will have to choose among them."). From the introduction:
The three deeply conservative justices whom Donald Trump named to the Supreme Court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—profess adherence to the judicial philosophy of the late Justice Antonin Scalia. Their appointments all but ensure not only a conservative majority on the Court for years to come but also the transmutation of Scalia’s jurisprudence—based on the principles of judicial restraint, originalism, and textualism—from an outsider legal theory into a mainstream constitutional doctrine.
These principles took shape gradually in Scalia’s lectures and judicial opinions, which are excerpted in a new collection, The Essential Scalia. Judicial restraint is, roughly, the idea that judges must not make what he called “legislative judgments” of public policy but should restrict themselves to applying the law. Originalism is the idea that “the provisions of the Constitution have a fixed meaning” and “mean today what they meant when they were adopted, nothing more and nothing less.” Textualism is a method of interpreting statutes by relying solely on “the text of a statute” rather than “subjective legislative intent” as well as any “broader social purposes” the law may have been intended to serve. Linking the three was generally intended to constrain judges from what Scalia saw as illegitimate activism.
Yet at the moment of its ascendance, conservative legal thought is facing a crisis. Tensions between Scalia’s principles had mostly been noted only in law journals. Last summer, however, they burst into public view in surprising Supreme Court rulings on high-profile issues like abortion and gay and transgender rights.
Ed Whelan responds at NRO Bench Memos: Noah Feldman’s Confusing Critique of Scalia on Judicial Restraint. From the introduction:
… Feldman’s confusing account of Scalia’s “judicial restraint” leads him to posit tensions that don’t exist and to misframe those that do.
… Feldman contends that Scalia’s jurisprudence is “based on the principles of judicial restraint, originalism, and textualism.” He fairly summarizes judicial restraint as “roughly, the idea that judges must not make what [Scalia] called ‘legislative judgments’ of public policy.” But several paragraphs later comes this bizarre passage about Scalia’s jurisprudence:
From the start there were latent contradictions between originalism and judicial restraint. Judicial restraint called for judges to defer to Congress’s authority to pass laws. But what if the original meaning of the Constitution required striking down laws that had been passed in the centuries since ratification?
The “latent contradictions” existed only if Scalia embraced a principle of judicial restraint under which judges must always “defer to Congress’s authority to pass laws”—in other words, may never rule a law to be unconstitutional. I doubt that any proponent of judicial restraint has ever espoused such a principle (which is tantamount to rejecting the power of judicial review). Scalia certainly never did.
Nor would such imaginary “contradictions” have been “latent” for long: Right near the start of his career as a justice, at the end of only his second year on the Court, Scalia penned his famous solo dissent in Morrison v. Olson (1988) in which he argued that the independent-counsel statute was unconstitutional.
And from later on:
More broadly, I believe that Feldman is wrong to include judicial restraint, along with originalism and textualism, in the “Scalian trinity” of jurisprudential principles. I think that Scalia instead understood judicial restraint as a value that originalism and textualism serve. Originalism respects the broad play that the Constitution gives to the democratic processes, and textualism implements the laws that have been democratically enacted.
If a third Scalia principle is to accompany originalism and textualism, it should be Scalia’s commitment to establishing a law of rules. Feldman briefly discusses Scalia’s lecture titled “The Rule of Law as a Law of Rules” (the lead item in The Essential Scalia), but he never explores the tensions that actually do exist between Scalia’s commitment to a law of rules, on the one hand, and his originalism and textualism, on the other. (There is plenty of room, for example, to argue that Scalia’s controversial Free Exercise ruling in Employment Division v. Smith (1990) was driven by his commitment to a law of rules rather than by his originalism.)
I think Whelan is exactly right on these points. Scalia believed in judicial restraint in the sense of judges not deciding according to their own values and not taking away from the political branches decisions the Constitution committed to the political branches. But judicial restraint described this way isn't in tension with originalism at all; it's an aspect of originalism.
Judicial restraint defined more broadly to demand very broad judicial deference to the political branches is indeed in tension with originalism. But, as Whelan says, Scalia never embraced judicial restraint in this sense. As his decisions show, he was quite willing to invalidate political branch decisions in conflict with the Constitution's original meaning. A leading modern argument for broad judicial restraint, Judge J. Harvie Wilkinson's Cosmic Constitutional Theory, extensively criticizes Scalia's originalism as counter to democratic decisionmaking.
Nonetheless, I think Feldman is right about a potentially developing struggle over Scalia's legacy — not over judicial restraint, but over pure textualism versus textualism informed by history and tradition. Feldman identifies the split between Justice Gorsuch and Justice Alito, for example in Bostock v. Clayton County and McGirt v. Oklahoma. (John McGinnis makes some similar points in the post linked here). It remains to be seen, though, how deep that split turns out to be; my guess is that Gorsuch and Alito will find a lot to agree on.
Posted at 6:14 AM