After Robert Bork failed to be confirmed for the Supreme Court, observers wondered whether Scalia would have a conservative ally on the Court. For a time it was not clear. The next person to be nominated by Reagan to fill Powell’s seat was Douglas H. Ginsburg, also a Court of Appeals judge from the District of Columbia. Ginsburg was seen as a “stealth candidate,” nominated because, after the well-known Bork’s fate, the Reagan administration believed that a less known candidate would be more successful in the Senate confirmation process. The problem with the strategy, though, was that the less well known the candidate, the more imperfect the vetting process by the Justice Department that might expose fatal weaknesses endangering the likelihood of Senate confirmation. In this case, the Justice Department vetting process did not turn up allegations that Ginsburg had been at a party of law faculty and students at Harvard University where marijuana was being smoked. In the new partisan confirmation circus, this allegation was sufficient to force Ginsburg to withdraw his nomination.1
After two failures, the administration finally found a confirmable candidate in federal Ninth Circuit Court of Appeals Judge Anthony Kennedy, who, despite having published nearly 1,200 opinions, was almost unknown nationally. Like Judge Ginsburg, Kennedy was a stealth candidate, but this time with better results. When Kennedy raised neither ideological nor personal objections among the battle-weary senators, he received a unanimous 97–0 vote for his confirmation. He joined the court in February 1988.
The fifty-one-year-old Kennedy was the same age as Scalia, and had attended the same law school, but it was their differences that would define their relationship. Kennedy’s father, Anthony, called “Bud” by acquaintances, made his living in his solo law practice as a trial lawyer and a lobbyist with the state government on behalf of the California liquor and tobacco industries.2 Rather than growing up in Scalia’s world of books, classes, and languages, Kennedy came to the dinner table to find the politically connected clients of his father, and he was urged to participate in the evening’s political discussions.3 Unlike Scalia’s devoutly conservative Catholic immigrant father, Kennedy was raised by Catholic parents based in the more openly inclusive religious mores of Sacramento, California.4 His early boyhood was spent not in a Catholic military prep school learning Latin, but being tutored in a legal and political home. As a teenager, Anthony traveled with his father throughout Northern California to serve as his law clerk, helping him by taking notes at the counsel’s table during trial, and typing up legal documents for his father’s cases late into the night. Through his father’s political contacts, Anthony also served as the then youngest page boy in the California state legislature.5
Kennedy attended Stanford, and spent his final year at the London School of Economics. Academically talented enough to be admitted to Harvard Law School, unlike Scalia, who became an editor of the Harvard Law Review in the class ahead of him, Kennedy lacked the grades to make law review and graduated only cum laude, the lowest level of graduation honors. After graduation from Harvard, he went into private law practice in San Francisco for two years, but when his father suddenly died of a heart attack, he returned to Sacramento to take over his father’s practice for several years before joining another private practice.6 Kennedy married his childhood sweetheart and raised his family in his childhood home, continuing to be an active member in the neighborhood. He also taught constitutional law at McGeorge School of Law at the University of the Pacific, located near his home.7
Appointed to the Court of Appeals in 1975, at the age of thirty-eight, Kennedy served for twelve years, revealing a conservative ideology with libertarian instincts on social issues. Kennedy was less combative than Scalia and devoted to educating people about American civics. Even after a dozen years on the federal Court of Appeals it was not entirely clear which decision-making approach he would use once on the High Court. No one could be certain how much he might agree or disagree with the textualism approach being developed by Scalia.8
With the appointment of a new colleague, Scalia began in his second term on the Court to extend beyond his textualism theory in order to follow what he called the historical tradition of a legal concept. In time, he would call this expanded historical decision-making technique the issue’s “text and tradition.”9 As Scalia had proposed in his June 14, 1986, speech right before his Supreme Court appointment, his historically based theory searched for the understanding that the American people had of constitutional phrases at the time of the ratification in the states of the Constitution or the Bill of Rights—what he called their “public meaning.” Beginning with the definitions of the words as determined by the appropriate dictionary from as close to the period in which the words were written as possible, Scalia then turned to various concordances of the Constitution, a library shelf of indices, much like the biblical concordances used to interpret Scripture, organized by phrase in the Constitution as well as other early writings, such as letters, diaries, and various newspaper articles, that help to reveal the meaning of those words.10 For Scalia, it helped that many of these concordances, such as Philip B. Kurland and Ralph Lerner’s The Founders’ Constitution, and, later on, Edwin Meese’s The Heritage Guide to the Constitution were conservative in nature and often supported the judgment that he was seeking to reach.11 Beyond this, Scalia looked for interpretive guidance to an understanding of basic English and Early American history.12
During his second term on the Court, the classic early example of how Scalia’s text and tradition technique led him to reach a result that he may not have liked came in the 1988 case of Coy v. Iowa, involving a man accused of sexually assaulting two thirteen-year-old girls while they were camping in a tent. When the two girls testified against him in open court, a screen was put up between the witness stand and the defendant’s table to avoid possible trauma to the girls from seeing him as they spoke. By preventing such a face-to-face situation, the defendant claimed the court was denying him the Sixth Amendment’s “right . . . to be confronted with the witnesses against him,” and in doing so the right to properly cross-examine the witnesses. Writing for the Court, Scalia defined the term “confrontation” to mean direct “line-of-sight” testimony, thus overturning the conviction. The term, he argued, comes “with a lineage that traces back to the beginnings of Western legal culture. There are indications that a right of confrontation existed under Roman law. The Roman governor Festus, discussing the proper treatment of his prisoner, Paul, stated: ‘It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges.’ ” Then he turned to Latin and the words of William Shakespeare: “Simply as a matter of Latin as well, since the word ‘confront’ ultimately derives from the prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun ‘frons’ (forehead), Shakespeare was thus describing the root meaning of confrontation when he had Richard the Second say: ‘Then call them to our presence—face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.’ ” Scalia concluded that “the irreducible literal meaning of the Clause [must be] a right to meet face to face all those who appear and give evidence at trial.’ ”13
In dissent, Harry Blackmun was unimpressed by this historical, linguistic, and literary tour de force in favor of a line-of-sight meaning to the confrontation of witnesses in the courtroom, labeling it as Scalia’s “reliance on literature, anecdote, and dicta from opinions that a majority of this Court did not join.” For Blackmun, the best evidence that confrontation meant only the opportunity to undertake a proper cross-examination of a witness lay in the works of legal scholars such as Harvard’s legendary law school dean John Henry Wigmore: “I find Dean Wigmore’s statement infinitely more persuasive than . . . the words Shakespeare placed in the mouth of his Richard II concerning the best means of ascertaining the truth. . . . In fact, Wigmore considered it clear ‘from the beginning of the hearsay rule [in the early 1700s] to the present day’ that the right of confrontation is provided ‘not for the idle purpose of gazing upon the witness, or of being gazed upon by him,’ but, rather, to allow for cross-examination.”14 Thus Blackmun saw no prejudicial effect in allowing a court to place a screen between the defendant and the minor victims so long as it still allowed for their cross-examination.
Scalia, though, was never one to allow a colleague to have the final word, offering his own primer as to how to use his textualism theory: “The dissent finds Dean Wigmore more persuasive than . . . William Shakespeare. . . . Surely that must depend upon the proposition that they are cited for. . . . The dissent cites Wigmore for the proposition that confrontation ‘was not a part of the common law’s view of the confrontation requirement.’ . . . To begin with, Wigmore said no such thing. What he said, precisely, was: ‘There was never at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation; it was the same right under different names.’ ”15 For Scalia the purpose of the right of confrontation was to allow the defendant to have direct line-of-sight vision of his accuser(s) in order to assess credibility.16 By using his historical approach to protect the defendant in this manner, Scalia reached the opposite result from his normal support for law and order.
Scalia also demonstrated his new “text and tradition” theory in a controversial death penalty case called Thompson v. Oklahoma. This case involved the imposition of a death sentence on a fifteen-year-old boy who was found guilty of a particularly brutal murder. The question before the justices was whether imposition of the death penalty on a minor constituted a violation of the Eighth Amendment’s guarantee against “cruel and unusual punishment.” Writing for a four-person plurality, Justice John Paul Stevens ruled that an imposition of this penalty on a minor was unconstitutional because “The authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that category. They delegated that task to future generations of judges who have been guided by the ‘evolving standards of decency that mark the progress of a maturing society.’ ”17 Stevens ruled that based on “the work product of state legislatures and sentencing juries in certain types of cases,” putting a defendant who was younger than sixteen to death constituted cruel and unusual punishment.
Scalia did not like the decision or the way Stevens reached it. Unable to find the “evolving standards of decency” test in his copy of the Constitution, he argued in dissent on the basis of history of British common law, as it was reported in “Blackstone’s Commentaries on the Laws of England, published in 1769,” that the acceptable age for imposing the death penalty was actually “widely accepted” to be lower. “At the time the Eighth Amendment was adopted,” Scalia explained, “according to Blackstone, not only was 15 above the age . . . at which capital punishment could theoretically be imposed; it was even above the age (14) up to which there was a rebuttable presumption of incapacity to commit a capital (or any other) felony. . . . The historical practice in this country conformed with the common-law understanding that 15-year-olds were not categorically immune from commission of capital crimes.”18
Scalia directly challenged his colleague’s use of the more expansive and modern “evolving standards of decency” to rule here. “It is assuredly ‘for us ultimately to judge’ what the Eighth Amendment permits, but that means it is for us to judge whether certain punishments are forbidden because, despite what the current society thinks, they were forbidden under the original understanding of ‘cruel and unusual’ . . . or because they come within current understanding of what is ‘cruel and unusual,’ because of the ‘evolving standards of decency’ of our national society; but not because they are out of accord with the perceptions of decency, or of penology, or of mercy, entertained—or strongly entertained, or even held as an ‘abiding conviction’—by a majority of the small and unrepresentative segment of our society that sits on this Court.”19 Scalia did not like that, rather than using the “original understanding” of the Founding Era society to decide this matter, it was done by a majority vote of the “personal consciences” of the nine justices.
Scalia was looking instead for a more stable, less changing standard. He failed to find a “national consensus” banning the death penalty for fifteen-year-olds, citing evidence that many death-penalty states and the federal government had no stated ban on the imposition of this penalty for minors. Counting also those nineteen states that had no minimum age for the imposition of the death penalty, he concluded: “A survey of state laws shows . . . that a majority of the States for which the issue exists (the rest do not have capital punishment) are of the view that death is not different insofar as the age of juvenile criminal responsibility is concerned. . . . Thus, what Oklahoma has done here is precisely what the majority of capital-punishment States would do.”20
In a concurring opinion, O’Connor tried to find the middle ground between Stevens’s “evolving standards of decency” and Scalia’s “original understanding” tests to interpret the Eighth Amendment: “The plurality [Stevens] and dissent [Scalia] agree on two fundamental propositions: that there is some age below which a juvenile’s crimes can never be constitutionally punished by death, and that our precedents require us to locate this age in light of the ‘evolving standards of decency that mark the progress of a maturing society.’ . . . I accept both principles. The disagreements between the plurality and the dissent rest on their different evaluations of the evidence available to us about the relevant social consensus.”21
Believing that these two theories could not be further apart, Scalia devoted a good portion of his dissent to setting O’Connor straight.22 He argued that the answer lay in government action: “I do not agree . . . that there is any doubt about the nonexistence of a national consensus. The concurrence produces the doubt only by arbitrarily refusing to believe that what the laws of the Federal Government and 19 States clearly provide for represents a ‘considered judgment.’ ”23 Scalia then made clear that he was unimpressed by O’Connor’s effort to craft a compromise solution. “The concurrence’s approach is a Solomonic solution to the problem of how to prevent execution in the present case while at the same time not holding that the execution of those under 16 when they commit murder is categorically unconstitutional. Solomon, however, was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system.”24
Scalia’s vigorous dissent had an impact the following term, when two other death penalty cases, this time dealing with the sentences imposed on one sixteen- and one seventeen-year-old, came to the Court and the newest justice, Anthony Kennedy, as well as Justice O’Connor, joined his side, allowing him to write his dissent from the Thompson v. Oklahoma case into law.25 To keep the majority together, though, Scalia followed O’Connor’s earlier suggestion by deemphasizing his own textualism and historical tradition theories in favor of blending them with a watered-down version of the “evolving standards of decency” test, as indicated by the actions of state legislatures, to uphold the constitutionality of the death penalties for minors.26
Only in the end of the opinion, in dealing with the dissenters’ call to leave this decision to the state legislatures, did Scalia make clear that his loyalty was not to the evolving standards of decency in future cases, but rather to his evolving approach. He offered for the first time what would become his most powerful attack against the living Constitution theory, that it substitutes the judgment of the justices for that of a democratic majority in American society: “By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that ‘those institutions which the Constitution is supposed to limit’ include the Court itself.”27 Scalia’s professed agreement with the evolving standards of decency advocates on the Court on the death penalty would continue only so long as their evolving standards reached the same result as his restrictive interpretation of the Constitution’s guarantees using his text and tradition theory.28
• • •
By the end of the 1987–88 term Scalia had the opportunity to refine his theory in a case called Morrison v. Olson, dealing with the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978, under which the special prosecutor system was established. As part of the legacy of the Nixon Watergate scandal, Congress created a permanent mechanism for the appointment of independent investigative officers to ensure that the government’s activities complied with the law. The case arising from this statute involved a congressional oversight investigation of the Environmental Protection Agency’s Superfund for cleaning up toxic waste sites. When President Reagan, citing executive privilege, refused to produce documents requested by Congress, the latter cited the head of the EPA for contempt. Theodore Olson, the Office of Legal Counsel head who had advised the president in this process, was accused of giving untruthful information to the investigating committee. Since in accordance with the law the independent counsel, Alexia Morrison, was appointed by offices within the United States Court of Appeals for the District of Columbia Circuit after a request from the attorney general, the question became whether this process violated the constitutional requirement for the appointment of executive officers by the president and requiring the confirmation of the Senate. Morrison argued that these independent counsels were inter-branch appointees, required to properly regulate the presidency, and so their appointment did not interfere with the president’s constitutional powers or violate the constitutional separation of powers.
Speaking for a seven-person majority, Chief Justice Rehnquist upheld the law, arguing that its appointment process “does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch.” As he argued: “The power to appoint inferior officers such as independent counsel is not in itself an ‘executive’ function in the constitutional sense.”29
While the line between a “principal officer” and an “inferior officer” was “far from clear,” Rehnquist argued for several reasons that this was a constitutionally permissible “inferior officer,” saying that Morrison was “subject to removal by a higher Executive Branch official,” in this case the attorney general; was “empowered . . . to perform only certain, limited duties,” in this case “investigation and, if appropriate, prosecution for certain federal crimes”; occupied an office that was “limited in jurisdiction,” as it was applicable only “to certain federal officials suspected of certain serious federal crimes”; and “limited in tenure.” Morrison, the chief added, was “appointed essentially to accomplish a single task, and when that task is over the office is terminated,” and thus was no different from the Watergate special prosecutor’s office that was upheld in the United States v. Nixon case.30 In the opinion of William Rehnquist, the former head of the Office of Legal Counsel for Richard Nixon, the presidency was not threatened, but rather bolstered by the independent counsel program.
Opposing this view in dissent was the former head of the Office of Legal Counsel for Gerald Ford, Antonin Scalia, whose time in that office had left him with a different view of executive power. Drawing from his difficult experience during that period of weakened presidential power in the post–Nixon resignation years, Scalia wrote a solo dissent opposing the independent counsel, using his historical tradition analysis to return the presidency to a position of preeminence in the constitutional separation of powers system. Scalia began with a history lesson, citing the Massachusetts constitution of 1780, drafted by John Adams, the Constitution, the Bill of Rights, and the Federalist Papers to argue, “It is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. . . . As the weight of the legislative authority requires that it should be . . . divided, the weakness of the executive may require, on the other hand, that it should be fortified.”31
Seeking to indicate his displeasure with the Court’s work, Scalia offered one of his trademark turns of phrase: “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that ‘a gradual concentration of the several powers in the same department’ . . . can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”32 As he read Scalia’s draft, Blackmun was dismayed, scrawling “Screams!” in the margin.33
In Scalia’s opinion, in a separation of powers system the executive branch should have total control over this kind of a prosecutorial appointment. For him, a legislative act creating an independent counsel, appointed by another government official, served to diminish the power of the president, thus violating the Constitution: “The Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that ‘some’ Presidential control.” For Scalia, the attorney general’s statutory power to remove an independent counsel for “good cause” was “somewhat like referring to shackles as an effective means of locomotion.”34
For Scalia, the Constitution was violated when any presidential power was removed. “It is ultimately irrelevant how much the statute reduces Presidential control. . . . It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.”35 While Scalia’s historical approach would not allow for a rewriting of the president’s constitutional powers, he argued that the majority vote of the Court did. “What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? . . . Once we depart from the text of the Constitution, just where short of that do we stop? . . . Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.”36
This case seemed to have revived the nightmare for Scalia of working as President Ford’s legal counsel, with attacks on executive power coming from the press and congressional investigations. For him, relying more on political than legal analysis, the reduction in presidential power due to the independent counsel program “deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ ”37
Scalia also could not fathom the Court’s analysis that the independent counsel, empowered with investigating and perhaps even bringing charges against a sitting president, did not affect the presidency. “The Court essentially says to the President: ‘Trust us. We will make sure that you are able to accomplish your constitutional role.’ I think the Constitution gives the President—and the people—more protection than that.”38 For Scalia, rather than trusting these special prosecutors with so much discretion and so much power to be fair to the chief executive and the members of the executive branch, the solution had long ago been devised by the constitutional Founders: “When they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.”39 The answer, he believed, was to vote the president out of office for malfeasance. The breadth and depth of Scalia’s analysis was impressive, but not to Justice Blackmun, who wrote on his draft, “Without the screaming, it could have been said in about 10 pages.”40
Scalia fought a valiant fight as the lone dissenter on behalf of preserving presidential power, but he lost the battle. Later, though, he won the war. After another special prosecutor, Kenneth Starr, led to the political impeachment, but not conviction, of President Bill Clinton in 1998 over perjury charges relating to his relationship with a White House intern, Congress saw the dangers to presidential power of this office and refused to reauthorize it. It was replaced with the U.S. Department of Justice’s Office of Special Counsel. And in time, Clinton’s successor, George W. Bush, would use many of Scalia’s theories to restore the powers of the presidency, creating what he called the “unitary presidency” by uniting the exclusive executive with the unwritten inherent constitutional powers of the office.41
Scalia’s admirers understood his contributions to this process. Former law clerk Stephen Calabresi, a founder of the Federalist Society, said in 2006 on the occasion of the twentieth anniversary of Scalia’s appointment to the Supreme Court: “Justice Scalia has written many important opinions on the Court over the last 20 years, but there are several that stand out and deserve special mention. [One of] Justice Scalia’s best opinions, in my view, [was] . . . his dissent in Morrison v. Olson, where the Court upheld the constitutionality of court-appointed special prosecutors. The Morrison dissent amusingly came to be hailed by liberals as prophetic during the Clinton impeachment proceedings and it helped lead to a situation where the political branches jointly decided to junk the special-prosecutor law in 1999.”42
• • •
During his third term on the Court, Scalia further developed his decision-making theory beyond textualism. One opportunity to do so came in an establishment of religion case concerning taxing religious publications. In February 1989, a majority led by William Brennan used the Lemon test to remove a sales tax exemption by the state of Texas for a religious publication called the Texas Monthly because the tax exemption violated all three sections of the test. In response, Scalia launched a verbal barrage in dissent: “As a judicial demolition project, today’s decision is impressive. The machinery employed by the opinions of Justice Brennan and Justice Blackmun is no more substantial than the antinomy that accommodation of religion may be required but not permitted, and the bold but unsupportable assertion . . . that government may not ‘convey a message of endorsement of religion.’ With this frail equipment, the Court topples an exemption for religious publications of a sort that expressly appears in the laws of at least 15 of the 45 States that have sales and use taxes.”43 In supporting religious tax exemptions, Scalia went further in outlining his theory for doing so: “I dissent because I find no basis in the text of the Constitution, the decisions of this Court, or the traditions of our people for disapproving this longstanding and widespread practice.”44 For him the fact that more than a dozen states had laws allowing such tax exemptions for religious groups was sufficient to uphold the Texas law because “religious tax exemptions of the type the Court invalidates today permeate the state and federal codes, and have done so for many years.”45
Just where Scalia would now be looking for “traditions of our people” to guide his decision making, much like his earlier “historic practices of our society” test in the Booth v. Maryland death penalty case, was not yet clear. But for him, the majority’s tests were much less clear: “Today’s decision introduces a new strain of irrationality in our Religion Clause jurisprudence. . . . It is not right—it is not constitutionally healthy—that this Court should feel authorized to refashion anew our civil society’s relationship with religion, adopting a theory of church and state that is contradicted by current practice, tradition, and even our own case law. I dissent.”46
One of the consequences of Scalia’s historically based theory was that from time to time he would, as he did in the Coy v. Iowa Confrontation Clause case, have to vote in ways he did not like. This was certainly the situation when the Court heard the appeal in Texas v. Johnson47 of a political protester named Gregory Johnson, who burned an American flag outside the Republican National Convention in Dallas, Texas, in 1988 to protest against U.S. foreign policy. In an unusual alliance of justices for this case, Scalia joined the majority opinion written by his frequent opponent on such cases, Brennan, who argued that burning a United States flag was symbolic speech, meaning that it was “expressive conduct” protected by the First Amendment’s freedom of speech provision. And for Brennan, the level of that protection was absolute: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . We have not recognized an exception to this principle even where our flag has been involved.”48 In this case, Brennan argued that the state of Texas had no right to protect the United States flag, which was a federal responsibility. In providing the fifth vote for Brennan’s majority, Scalia did not write an opinion in the case. Over the years, his approach would lead him to vote consistently for an expanded free speech protection.
Years later, Scalia would speak on the lecture circuit about how this case was the classic example of how his theory led him to do the kind of thing he did not want to do. “Trust me, I did not like to not put Mr. Johnson in jail,” he would say. To Scalia, he was “bearded, scruffy, sandal-wearing. . . . But I was handcuffed. I couldn’t help it. That’s my understanding of the First Amendment. I can’t do the nasty things I’d like to do.”49 The day after the decision was announced, Scalia was treated at breakfast to a rendition by his wife, Maureen, of “It’s a Grand Old Flag.” Scalia, by his own admission, “got a lot of heat from that opinion, really serious biting criticism from the quarter I normally don’t get criticism from—that is to say from the right rather than the left.” However, former President George H. W. Bush, himself a respected war veteran, sent a letter to Scalia’s wife saying: “I know your husband has been getting a lot of criticism for his flag-burning decision. Tell him not to worry about it. He did the right thing.”50
• • •
After witnessing firsthand for more than two months how far apart his decision-making technique was from that of his colleagues, Scalia decided to debate with them beyond the confines of the Court. He now had his answer to Joe Biden’s questions during his Senate confirmation as to how he “view[ed] the interpretation of the Constitution,” and who he would become as a justice. He was not going to become a Court politician. Unlike the predictions of many when he first came to the Court, he would not become an engaging judicial playmaker like Brennan, able to develop and direct voting coalitions for the conservatives. Having decided to act as a “Court of One,” Scalia would judge cases, often in ways that allowed him to write largely for himself, while developing his textualism and historical tradition theories. To further that process, he developed stump speeches, just as he had described in that June 14, 1986, speech to the attorney general’s Conference on Economic Liberties, and delivered them to a wide variety of audiences in order to educate Court observers and develop followers.
While he worked out the nature of his constitutional theory on the Court on a case-by-case and speech-by-speech basis, by September 1988 Scalia had also begun to develop, as he termed it during his answer to Biden, “a full constitutional matrix” for deciding cases. Scalia was ready to share that vision with the world on the lecture circuit. In a pair of speeches, he answered the question, “What was the most plausible meaning of the words of the Constitution to the society that adopted it—regardless of what the Framers might secretly have intended?”51
For Scalia, the search for what he now called the “public meaning” of the Constitution was not only entirely different from Bork’s original intent theory, but it also went beyond his own dictionary-based textualism theory that had guided him on the Court of Appeals and during his first term. Scalia was going beyond parsing Noah Webster and semantics to some historical, analytical version of how the general public at that time understood those words.
Scalia presented the early version of what he now called his originalism theory in September 1988, in the William Howard Taft Constitutional Law Lecture at the University of Cincinnati. He titled the address “Originalism: The Lesser Evil,” and it became the foundation for his jurisprudence for the rest of his career.52 Given the venue, it was perhaps appropriate that Scalia explored the “originalist approach to constitutional decision-making” taken by Chief Justice Taft in the 1926 case Myers v. United States, which argued under the meaning of the constitutional separation of powers, as understood in 1789, that the president had unlimited power to remove purely executive officers. In noting that it took the chief justice three years to write a massive seventy-page opinion, while Scalia’s Court had taken only a couple of months to draft the recent Morrison v. Olson decision on the constitutionality of the independent counsel law, Scalia compared the two decisions.
He began as he usually did in such speeches by presenting his opponents as straw men to be attacked. Here he directed his criticism toward those living, evolving constitutionalists, like William Brennan, whose “nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing—either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court’s desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support.” Scalia argued that his living, evolving Constitution Court opponents offered nothing of substance to this discussion.
You can’t beat somebody with nobody. It is not enough to demonstrate that the other fellow’s candidate (originalism) is no good; one must also agree upon another candidate to replace him. . . . As the name “nonoriginalism” suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach. . . . Nonoriginalism, in other words, is a two-way street that handles traffic both to and from individual rights.
Scalia posed two common objections to his theory of originalism, both of which he believed his audience would come to see were easily answered. The first criticism addressed the difficulty in accurately determining such a “public meaning.” “It is often exceedingly difficult to plumb the original understanding of an ancient text,” he began. But, Scalia explained, what appeared to be a weakness of his theory was actually a strength:
Properly done, the task requires the consideration of an enormous mass of material—in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. Even beyond that, it requires an evaluation of the reliability of that material—many of the reports of the ratifying debates, for example, are thought to be quite unreliable. And further still, it requires immersing oneself in the political and intellectual atmosphere of the time—somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day.
Here he made clear that he was not Robert Bork, simply divining the original intent of the constitutional Framers, but rather an American historian, analyzing the people in the society of that day to glean their understanding of the text. In the end, Scalia conceded: “It is, in short, a task sometimes better suited to the historian than the lawyer.” The fact that Chief Justice Taft had done this in Myers and Scalia had done the same in the Morrison independent counsel case indicated to him that the task was not impossible.
The second objection to the originalist theory gave Scalia a bit more pause. What should a true originalist judge decide in the face of long-standing Court precedents or modern practice that reached a different result? Scalia argued:
In its undiluted form, at least, [originalism] is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis. . . . Stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge—even among the many who consider themselves originalists—would sustain them against an eighth amendment challenge. . . . Any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.
Thus, Scalia said that he would be a “faint-hearted originalist,” finding a way based on precedent or some other source to temper his historical findings by upholding long-time precedents.
In the end, he argued, the main advantage in his originalist approach is that it will limit judges’ discretion, thus keeping them within the bounds of the Constitution:
Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. And the principal defect of that approach—that historical research is always difficult and sometimes inconclusive—will, unlike nonoriginalism, lead to a more moderate rather than a more extreme result. The inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values—so that as applied, even as applied in the best of faith, originalism will (as the historical record shows) end up as something of a compromise.
Scalia wanted his audience to believe that interpreting laws and the Constitution was easy, if only judges would do it his way. There were, however, fundamental structural problems with Scalia’s approach that he was not willing to discuss in this speech. The fundamental assumption of his historical approach was that the history from this period, and thus the meaning of these words, could be determined with certainty. With Federalists and Anti-Federalists offering differing views in state ratifying conventions on many issues in the constitutional debate, divining one “original meaning” of those words seemed an unlikely, if not impossible, task. Writing history is a matter of making choices about the value of such evidence as still exists or can be uncovered. How does one measure the differences between the meaning of the words of the Constitution in the ratification debates of South Carolina as opposed to those in Massachusetts? How does one weigh the varying interpretations among the Federalists as opposed to the Anti-Federalists? Assessing such evidence is all a matter of making choices, and the choices are determined by the individual judge.
But did Scalia have the right tools for the job? In determining the textual meaning of the Constitution (1787) and the Bill of Rights (1791) by relying on Webster’s American Dictionary of the English Language, published in 1828, Scalia was opening himself up to the question of the chronological appropriateness of the published work.53 Did the Western mob that would nearly destroy the White House during General Andrew Jackson’s inauguration celebration in 1829 understand the meaning of words in a manner identical to that of the aristocratic gentlemen of the Virginia-Massachusetts power axis of Washington, Adams, and Jefferson four decades earlier?54 For a theory that argued that the meaning of the Constitution was static, the choice of dictionary should not allow for any change at all in the meaning of the words.
One of the nation’s preeminent Early American historians, Gordon Wood of Brown University, took issue with the originalists in an essay in The New York Review of Books published earlier in 1988. Titled “The Fundamentalists and the Constitution,” Wood’s argument was based on an address that he had given for the Virginia Commission on the Bicentennial of the United States Constitution. Wood was one of the first to draw the connection between the proponents of original intention such as Bork and Scalia, and the intellectual history of the political philosophical theories of Leo Strauss of the University of Chicago, who preached close reading of philosophical texts in order to find what he and his devoted intellectual disciples believed to be their hidden, or “true,” meaning. Wood credited the legal philosophy of the Reagan administration and Justice Department, as well as much of the Bicentennial celebration itself, to the Strauss group: “Perhaps the most remarkable fact about the scholarship of the bicentennial celebrations is the extent to which that scholarship has been colored by the students and followers of Leo Strauss. . . . ‘Straussians’ are everywhere in government and academia, in both high and low places, in conferences, in symposiums, in books and journals.”55
But Wood came not to praise Strauss but to bury him, and those in the American legal world who would follow his teachings. Speaking of the theory of original intention, Wood said:
So long as “original intention” is confined to jurisprudence and not taken literally, the theory may be a legitimate and useful legal fiction for controlling judicial discretion. But historically there can be no real “original intention” behind the document. Not only were there hundreds of Founders, including the Anti-Federalists, with a myriad of clashing contradictory intentions, but in the end all the Founders created something that no one of them ever intended. . . . Ideas can, and often do, become political philosophy, do transcend the particular intentions of their creators and become part of the public culture, become something larger and grander than their sources.
And since they become “larger and grander than their sources,” concluded Wood, then contrary to the legal theories of men like Bork and Scalia, they will not be limited to a static, historical interpretation. Rather, the meaning of the document must evolve and grow over time:
“Historicism” is as restrictive as it is permissive, as conserving as it is liberating. Historians know that the meaning of the Constitution has changed and will continue to change. They also know that no one is free to give whatever meaning he or she wants to it. In our choice of interpretations we are limited by history and by the conventions, values, and meanings we have inherited. If anyone in our intellectual struggles violates too radically the accepted or inherited meanings of the culture, his ability to persuade others is lost.
Such criticism as Wood’s, however, had no impact on Scalia.
The yet-unstated question was whether Scalia’s approach was what the judges authorized by Article III were intended to do. Did the Framers really intend for later judges to turn back the clock to their period to interpret the Constitution? Should the words of the Constitution, which were the result of months of compromise among countless drafters, have as much value for judges as the values that underlay the words? At base, the question was whether the Constitution was meant to be static, frozen in time by the Founders’ words, or evolving in order to extend to new times. This would become the partisan fault line on the Supreme Court toward the end of the twentieth century.
With this September 1988 speech, Scalia had formally made his claim to be the new intellectual leader of the constitutional fundamentalists—devoted in his judicial decision making exclusively to the words and culture of the Founding period of the Constitution. In praising the historical interpretive method, most of Scalia’s speech described his method for doing originalist, textual analysis. Over time, though, he would change his views about his willingness to overturn existing precedents. Asked in 2008 at a Federalist Society meeting, “Why are you a ‘faint-hearted originalist’?” Scalia responded with a chuckle:
Oh my. I said that a long time ago. I said in the course of, I guess it was an argue piece that you, if you are an originalist, you would have to say that the 8th Amendment . . . does not prohibit the cutting off of the ear, or the notching of the ears, which is the way in the framing generation felons used to be identified. Criminals they would notch the ears, and they would inflict corporal punishment lashes and so forth. Now I suppose that I have to say that that is not unconstitutional and, if I had a case right in front of me, at that time, at least, I said, you know, I’m not sure, maybe I’m too faint-hearted to say that. But as I’ve gotten older and crankier. I mean, I don’t like that stuff, but, and the more horrible you make the example, the less likely it is to occur. I’m not really worried that people are going to start notching ears. So, you know, it’s just sort of an academic question invented to embarrass an originalist.56
By early 1989 Scalia was ready to expand on the explanation of his approach. In another speech, on February 14, 1989, at the Oliver Wendell Holmes Jr. Lecture at Harvard Law School, he explained how to do his originalist/textualist approach.57 Entitled “The Rule of Law as a Law of Rules,” the speech argued that the originalist technique would guide judges in finding clear, bright-line “cateogorical rules” that would help them reach results while also limiting their discretion. Scalia explored in this speech what he called “the dichotomy between general rules and personal discretion within the narrow context of law that is made by the courts.” It was the “general rules” produced by originalism and textualism that Scalia preferred. “The law grows and develops, the theory goes, not through the pronouncement of general principles, but case-by-case, deliberately, incrementally, one-step-at-a-time. . . . When I was in law school, I was a great enthusiast for this approach—an advocate of both writing and reading the ‘holding’ of a decision narrowly, thereby leaving greater discretion to future courts. Over the years, however—and not merely the years since I have been a judge—I have found myself drawn more and more to the opposite view.”
While the dual advantages of this use of general rules were both “uniformity” and “predictability,” Scalia most appreciated that “Only by announcing rules do we hedge ourselves in.” At this point, Scalia argued for another advantage to this use of “categorical rules”—the protection of minority groups against oppression by majority will. With general rules supplementing the courage of judges, Scalia argued, “The chances that frail men and women will stand up to their unpleasant duty are greatly increased if they can stand behind the solid shield of a firm, clear principle enunciated in earlier cases.” And Scalia had already lectured as to where these general rules could be found: “Even where a particular area is quite susceptible of clear and definite rules, we judges cannot create them out of whole cloth, but must find some basis for them in the text that Congress or the Constitution has provided. It is rare, however, that even the most vague and general text cannot be given some precise, principled content—and that is indeed the essence of the judicial craft.”
Having already outlined his method of “textual exegesis,” or “adher[ing] closely to the plain meaning of a text,” in his Cincinnati speech, Scalia argued that this was far better than the living, evolving constitutionalism of liberals William Brennan and Thurgood Marshall. “It is, of course, possible to establish general rules, no matter what theory of interpretation or construction one employs. As one cynic has said, with five votes anything is possible. But when one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation.” Thus, Scalia urged “that the Rule of Law, the law of rules, be extended as far as the nature of the question allows; and that, to foster a correct attitude toward the matter, we appellate judges bear in mind that when we have finally reached the point where we can do no more than consult the totality of the circumstances, we are acting more as fact-finders than as expositors of the law.” Beyond the general theory, just how to find the “law of rules” was not made clear.
In these two speeches, with their messages of devotion to textualism, determining historically the “plain meaning” of the text, the need for a bright-line “law of rules,” and the theory of “faint-hearted originalism,” Scalia articulated the basis for his theory for interpreting the Constitution. The speeches were his opening salvos in his war to control the debate over the Court’s work. He was demarcating the terms by which legal issues would be discussed, but also clearly marking the ground on which the battle on the Court would be fought. Not only would he be defining the terms of the discussions in the Federalist Society which he had helped to found, and the conservative law review scholarship where he had once published, but, in a sort of legal laboratory, he would then demonstrate on the Supreme Court how these theories would work in deciding cases.
On April 6, 1989, Scalia gave a third speech, at the University of Georgia Law School, which would provide the framework for the constantly evolving constitutional interpretation stump speech that he would give scores of times throughout his career.58 Here Scalia sounded like a religious scholar, arguing: “Unlike any other nation in the world, we consider ourselves bound together not by genealogy or by residence but quite genuinely by belief in certain principles and the most important of those principles are set forth in the Constitution of the United States. Such is the veneration we have for the document.”59 At the end of this speech, though, Scalia unwittingly laid the foundation for one of the most devastating long-term alterations of his new theory: “the Supreme Court cannot save this society from itself because over the long haul the Court is no more than the society itself. The compromises of principle, the misperceptions of liberty that are believed in the homes, learned in the schools, and taught in the universities will ultimately be the body of knowledge and belief that new justices bring with them to the bench.” Indeed, as new justices joined the Court, schooled and believing in new readings of the meanings of the words in the Constitution, Scalia’s very technique could be used against him to reach different results.
Besides educating the legal community to his new judicial approach, there was an unintended consequence to Scalia’s talks. In making these speeches from the bench, Scalia behaved more like an academic than a Supreme Court justice, choosing to break the prevailing ethical norms of the Court against such extrajudicial speechmaking. This informal rule had been in existence since 1969, after the forced resignation of Justice Abe Fortas. Since that time, the Court had almost entirely abstained from extrajudicial activities in order to avoid controversy.60 Within the Court, one reporter later wrote, the norm had become that “Secrecy is almost a religion at the Supreme Court and its justices rarely violate the tradition of silence about their decisions.”61 It would be a full decade before John Paul Stevens, as well as three other justices, in late 1979, would give a speech explaining the Court’s recent, controversial freedom of the press decision dealing with the public’s right of access to courtrooms for some early stages for criminal trials.62 Then Justice Harry Blackmun ignored the Court’s informal vow of silence on Thanksgiving Day 1982 by giving a televised interview to reporter Daniel Schorr for CNN, followed by an interview in early 1983 with New York Times reporter John Jenkins for a Sunday magazine article, and an interview with Bill Moyers for his In Search of the Constitution series in 1987.63 All of Blackmun’s appearances were given with the intention of humanizing the jurist, who was then getting death threats over his majority opinion in the Roe v. Wade abortion decision, and of announcing his professional split from conservative Chief Justice Warren Burger while moving toward the liberal wing of the Court.64
But Scalia’s extrajudicial appearances were different from Blackmun’s. Unlike Blackmun, who was discussing his own work in retrospect to explain why analysts and observers should see him differently, Scalia was outlining the terms of how he would act in the future in the hopes that other conservatives would follow his lead. Scalia’s speeches, exactly like the ones he made while serving on the federal Court of Appeals to speak on legislative history, now served to change the Court’s tradition, and in time others would follow him. As a result, Scalia, after the Bork failed confirmation, began the process of politicizing the Court and launching the partisan warfare among the justices. In time, liberal jurists would begin to speak in response to Scalia and debate him in public, and in doing so rachet up the partisan nature of the Court, while also encouraging others to breach the vow of silence.
Scalia now saw his mission as leading the war to change the Supreme Court from the liberal activism of the Warren Court of the 1960s and the waffling moderate conservatism of the Burger Court in the 1970s and 1980s to the dedicated, unwavering conservative-oriented search for the original meaning of the Constitution after 1986. He just needed to persuade people in speeches and writing off the Court that textualism and originalism were the proper ways to decide cases.
But in launching this legal crusade, Scalia had already forgotten one thing. Just as no man is an island, no individual justice runs the Supreme Court. Scalia ignored the politics of his position, and in doing so risked the most precious thing in his quest—judicial votes.