When Justice Antonin Scalia passed away this February, talk turned almost immediately to who would replace him—although in a large sense he is irreplaceable. Even those who disagreed with Justice Scalia acknowledge his profound impact. His scholarship and judicial opinions, through brilliance and wit, transformed how we think about the law and the Constitution. He inspired a generation of law students and lawyers. He provided a foundation for the work of judges and legislators, as well as attorneys general like myself. And all who knew him personally will attest that his brilliance was matched only by his warmth, cheer, and grace. He will be deeply missed.
In thinking about the kind of person who should take his seat on the Court, it is worth reflecting on Justice Scalia’s principles of jurisprudence. One of the chief principles he championed, as a scholar and as a judge, is that the law, whether statutes or the Constitution itself, must be applied according to its text. In other words, judges should not apply the law based on what is good policy or what they suppose Congress may have intended (but did not express) in passing legislation.
In addition, Justice Scalia believed that the words of the law should be understood as they were understood by the people when the law was enacted. For example, if you strike a bargain with someone, and later there is a dispute about that bargain, how do you interpret the words of your contract? Do you look to what the words of the contract meant at the time you agreed to them? Or do you look to what those words mean ten or 50 years after the fact? There are some who believe that the meanings of words change over time, untethered from any objective measure. Thus what is legal one day may be illegal the next without any textual changes to the law. Justice Scalia rejected this notion. He held fast to the idea that the meaning of laws is fixed by the meaning ascribed to their words at the time they were enacted.
These two principles, textualism and originalism, are rooted in a third characteristic of Justice Scalia’s jurisprudence: an unwavering respect for the idea of popular government. Laws, including the Constitution, receive their legitimacy from the people. The Constitution is not an autonomously evolving document that spins out new “rights” and obligations to which the people have not given their consent. Rather than discovering new rights in the Constitution, judges should respect the constitutional prerogative of the people to pass laws through their representative legislatures, limited by the restraints imposed by the Constitution—which was itself ratified by popular means.
Along with this opposition to creative interpretation of the Constitution, a fourth characteristic of Justice Scalia’s life work was a conviction that the rights actually guaranteed in the Constitution should be tenaciously defended, from the right of free speech to the rights of criminal defendants. Beyond these enumerated rights, Justice Scalia recognized that the Constitution’s primary protection of liberty is its structure of checks and balances between branches and its division of powers between the federal government and the states.
In short, Justice Scalia rejected the judicial activism of inventing law while embracing judicial engagement by ensuring that the limits on government are strictly enforced.