While he was losing votes at the end of the 1995–96 term, Scalia developed a new plan for “conquering the majority” and taking control of American constitutional law. Just as he did after his judicial losses in 1988–89, Scalia decided to create a new “war of the words” in early 1996, previewing a new stump speech at Valparaiso University in Indiana before later presenting it at Catholic University in Washington, D.C.1 During the previous seven years Scalia had continued to give his early speeches outlining his theories of textualism and faint-hearted originalism, reprising them so frequently that the media largely stopped reporting on them after 1991. His new idea was to combine the two speeches into one, entitled “A Theory of Constitutional Interpretation,” which would explain his decision-making technique in a more accessible way for a general audience.
The origins for this new speech came from his prestigious Tanner Lecture a year earlier at Princeton University’s Center for Human Values. In a speech titled “Common-Law Courts in a Civil-Law System: The Role of U.S. Federal Courts in Interpreting the Constitution and Laws,” which he later turned into a book, A Matter of Interpretation, Scalia explored what he called “the current neglected state of the science of construing legal texts” while also “offer[ing] a few suggestions for improvements.”2 The first three-fourths of his address offered a combination of a reworked version of his 1985–86 talk on legislative history, and his 1988 textualism speech, discussing how judges should interpret statutory texts, with the goal of ending judicial lawmaking, thus limiting the judiciary’s power. He began by discussing the “common law lawmaking” system in which judges used a process of stare decisis, or respect for precedent, “to establish whether the case at hand falls within a principle that has already been decided.”3 The task here, he argued, was complicated by the fact that “Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution.”4 However, he added, the problem was that “We American judges have no intelligible theory of what we do most.”5 And discovering the goals of the legislature was not possible because such a quest ventured into determining the “legislative intent” that he had long criticized: “Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver.”6 So Scalia counseled the “abandonment” of the use of “legislative intent” as being “simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.” Instead, he urged the use of his textualism approach. “The text is the law, and it is the text that must be observed.”7 Scalia insisted that no one should call him a “strict constructionist,” a popular theory that judges should only rely on a strict interpretation of the text itself. This theory was used by Nixon during his 1968 presidential campaign in promising to search for such Supreme Court candidates as a means of both limiting the Court and turning back the liberalism of the Warren Court. Under Scalia’s textualism theory, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”8
Having discussed textual interpretation, Scalia now tapped into his June 1986 speech that he delivered just before his Supreme Court appointment in turning to his theme exploring “the distinctive problem of constitutional interpretation.”9 Returning to familiar ground, Scalia explained his interpretive theory this way: “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.” In searching for “original meaning,” rather than Robert Bork’s “original intent,” Scalia opposed those “evolving Constitution” judges who sought the current meaning of the words in what they saw as a “Living Constitution.”10 He opposed rulings based on “the evolving standards of decency that mark the progress of a maturing society,” instead arguing, “It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.”11 But in calling for an interpretation of statutes based on textualism, and an unchanging Constitution, Scalia still had not explained how to determine the meaning of the Constitution using his theory of originalism. It was because he had to interpret history for his judicial decision-making approach that scholars of Founding Era history took issue with him.
One of the respondents to this essay was Brown University’s Early American historian Gordon Wood, who argued that the “extraordinary degree of discretionary power that American judges now wield” that so concerned Scalia was, in fact, “the product of immense changes in our legal and judicial culture which have occurred over the past two hundred years, and these changes cannot be easily reversed.”12 Wood found Scalia’s “remedy of textualism in interpretation . . . scarcely commensurate with the severity of the problem and may in fact be no solution at all,” since it was “as permissive and as open to arbitrary judicial discretion and expansion as the use of legislative intent or other interpretive methods, if the text-minded judge is so inclined.”13 In other words, a textualist, in arguing for a limited judicial lawmaking power, could in fact be an activist and evolving judge just by expansively interpreting the words contained in the text. For Wood, the only means “to limit the judges’ interpretive power” was “by changing the attitude of judges themselves.”14 Scalia responded that Wood’s apparent acceptance of the historical evolution of “judicial rewriting of democratically adopted texts” created “willful judges who bend the law to their wishes. But acknowledging evil is one thing, and embracing it is something else.”15
Having laid this intellectual foundation, Scalia wove all of these themes from his Princeton speech and subsequent book into a new, more accessible speech that he delivered at Valparaiso University’s law school in late January 1996. While he was on campus to teach a short course and help judge the law school’s annual moot court competition, Scalia spoke to over six hundred people on the topic “Today’s Interpretation of Our Constitution,” which contained many of the catchphrases he would make famous in the next phase of his speaking career. He once again attacked the notion of a living Constitution. Scalia insisted that the Constitution had a fixed meaning, at least in theory. As he saw it, “People must make decisions based on the law, not on opinions and feelings. However, the real problem with having a living constitution is that it leaves [its] interpretation up to the majority.”16 And so, for him, change in America’s democracy should come not from a majority vote of the nine justices on the Court, but rather from the people: “If you want change, all you need is a ballot box and the legislature. Democracy means discussion, vote and then majority wins.”17
In the fall of 1996, Scalia expanded on his theory at Catholic University. He introduced himself by saying: “I belong to a school, a small but hardy school, called ‘textualists’ or ‘originalists.’ That used to be ‘constitutional orthodoxy’ in the United States.” That said, he launched into the clearest short explanation that he had given thus far of how his theory differed from the original intent theory of his former Court of Appeals colleague Robert Bork and Attorney General Edwin Meese:
The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.
Harkening back to his “The Rule of Law as a Law of Rules” speech searching for general decision-making rules, Scalia now offered his Golden Rule for decision making:
The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the intent of our legislators, but by the laws which they enacted, which are set forth in words, of course. As I say, until recently this was constitutional orthodoxy. Everyone at least said . . . that the Constitution was that anchor, that rock, that unchanging institution that forms the American polity. Immutability was regarded as its characteristic. What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times.
His Constitution could be changed, Scalia explained, but by only one means: “That’s why there’s an amendment provision.”18
There was little doubt that Scalia’s comments about the living Constitution were aimed at the Court’s three steadfast liberals, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg, but he also took issue with the three living, evolving, constitutional moderates: David Souter, Anthony Kennedy, and Sandra Day O’Connor. On occasion, Scalia also took issue with his two conservative colleagues—William Rehnquist and Clarence Thomas—when they were willing to craft new decision rules. For him, the split on the Court was no longer an ideological one of liberal versus conservative because, as he explained, sometimes “conservatives are fully as prepared to create new rights under this evolutionist theory of the Constitution, as liberals are. . . . [I]t’s not liberal/conservative. It’s modernist versus the traditional view of the Constitution.”
Scalia would allow changes to protect rights, but through means other than five Supreme Court votes: “What was the situation, before Roe v. Wade? If you wanted a right to an abortion, create that right the way a democratic society creates most rights. Pass a law. If you don’t want it, pass a law against it.” Coining a favorite argument for future speeches, Scalia asked: “If you want somebody who’s in touch with what are the ‘evolving standards of decency’ that reflect a maturing society, ask the Congress. . . . What makes you think a committee of nine lawyers ought to tell where we’re evolving to.” And as far as he was concerned, sticking to the original meaning of the words in the Constitution was what lawyers were qualified to do: “It’s lawyer’s work. But if that is not what the Constitution is, if it is not a text, like a statute, which means what it meant when it was passed. If it is rather sort of an empty bottle that contains the aspirations of the society, just all sorts of wonderful aspirations, the precise content of which is quite indeterminate. No cruel and unusual punishment today, it may mean the death penalty is OK, tomorrow it won’t. Due process of law, whatever that means. We’re just in love with these abstractions, and the Supreme Court in the future shall decree for us what these abstractions mean.” Scalia’s Constitution was meant not to promote change, but to retard or even prevent it: “The whole purpose of the Constitution is to prevent a future society from doing what it wants to do. That’s the whole purpose. . . . The only reason you need a Constitution is because some things you don’t want the majority to be able to change. That’s my most important function as a judge in this system. I have to tell the majority to take a hike. I tell them, ‘I don’t care what you want, but the Bill of Rights says you cannot do it.’ ”
In this new speech, as opposed to the two from 1988–89, there was less discussion of textualism and more discussion of originalism, applying a reading of an unchanging Constitution to modern legal issues. It became the staple of Scalia’s public appearances for the next nine years, and would become the foundation for the rest of his public speaking career. With each new iteration, Scalia became less and less attached to the precise dictionary definition of the text, which by his own explanation limited his flexibility to interpret, and more and more reliant on originalism, which afforded him greater leeway in choosing which historical documents and historical interpretations of the American Founding period would best support his decisions. Just how this interpretive technique was different from examining legislative intent is not always clear to anyone but Scalia, but his new decision-making process afforded him more discretion and more latitude to interpret those words in a way that allowed him to reach the traditional, conservative result that he preferred.
Stanford constitutional historian Jack Rakove, agreeing with Gordon Wood, articulated the problems that he saw in Scalia’s overall theory in his 1996 Pulitzer Prize–winning work, Original Meanings: Politics and Ideas in the Making of the Constitution. In his preface to the volume, Rakove argued that “originalism is vulnerable to two powerful criticisms. First, it is always in some fundamental sense anti-democratic, in that it seeks to subordinate the judgment of present generations to the wisdom of their distant (political) ancestors. Second, the real problems of reconstructing coherent intentions and understandings from the evidence of history raise serious questions about the capacity of originalist forays to yield the definitive conclusions that the advocates of this theory claim to find.” With tongue firmly in cheek, however, Rakove was willing to concede to Scalia: “On the other hand, I happen to like originalist arguments when the weight of the evidence seems to support the constitutional outcomes I favor—and that may be as good a clue to the appeal of originalism as any other.”19
In his opening chapter, “The Perils of Originalism,” Rakove argued that basing any judgment on history that is not written with an eye toward being used as the basis for judging is uncertain because “Historians have little stake in ascertaining the original meaning of a clause for its own sake, or in attempting to freeze or distill its true, unadulterated meaning at some pristine moment of constitutional understanding. They can rest content with—even revel in—the ambiguities of the evidentiary record, recognizing that behind the textual brevity of any clause there once lay a spectrum of complex views and different shadings of opinions.”20 Rakove cited with favor another constitutional historian, Leonard Levy, who argued that “the Supreme Court’s use of originalist evidence is best described as a mix of ‘law office history’ [citing only supportive history for their side by lawyers in their legal briefs] and justificatory rhetoric which offers little reason to think that this method of interpretation can provide faithful and accurate application of the original constitutional understandings its advocates promise.”21
Rakove then explained why Scalia’s call for an originalist approach was both too limited and unreliable. There were, he argued, “four sets of sources that can be brought to bear to solve problems or puzzles about the original meaning of the Constitution” that Scalia could use. Rakove explained that there are two “textual” sources from “explicit discussion of the Constitution”: “the records of debates of the federal and state conventions of 1787 and 1788” and “the commentaries published during the campaign over its ratification.” Beyond this written material, Rakove argued that two other sets of “contextual” sources existed that “may enable [historians]—when explicit commentary on particular points seems inadequate—to reconstruct a body of tacit assumptions and concerns that informed the way in which framers and ratifiers thought about the questions they were resolving.” Those two contextual markers were “those broad notions of government that Americans had acquired through their absorption in the political theory of the Enlightenment,” and “their perceptions of what might be called the public-policy issues of their day,” which “were arguably as likely to influence their thinking as the maxims and axioms they found in Locke or Montesquieu or Blackstone.”22 For Rakove, all of these additional sources allowed one to determine the context of “the original meaning of the Constitution” drafted by “delegates [who] came to Philadelphia essentially uninstructed by their legislative constituents,” and thus were “the internal deliberations of the [1787 Constitutional] Convention.”23 For Rakove, the contextual sources were not part of Scalia’s theory, which for him rendered the justice’s interpretation of the original meaning of the Constitution suspect.
Rakove explained the limits of Scalia’s originalism theory this way: “Like any other historical effort to explain how texts emerge from contexts, the recovery of original meanings, intentions, and understandings is itself an act of interpretation—but one that can at least be bounded, though not perfected, by canons of scholarship.” In short, for him, “its goal is (and should remain) elusive.”24 Rakove articulated what he saw as the limits of originalism: “It is one thing to rail against the evils of politically unaccountable judges enlarging constitutional rights beyond the ideas and purposes of their original adopters; another to explain why morally sustainable claims of equality should be held captive to the extraordinary obstacles of Article V or subject to the partial and incomplete understandings of 1789 or 1868.”25
But Scalia nearly always chose not to grapple with the challenges posed to him by the nation’s top historians. As the man sitting on the Supreme Court, wearing the judicial gown, his constitutional authority became the trump card in this discussion, allowing, for him, his theory to prevail.
• • •
Soon after unveiling his revised explanation of originalism in the Valparaiso and Catholic University speeches, Scalia was able to demonstrate in cases how his newly packaged theory worked. In 1997 he wrote the majority opinion in a federal handgun control case, Printz v. United States, which dealt with the federal Brady Handgun Violence Prevention Act, named for James Brady, press secretary to President Reagan, who was severely injured in the attempted assassination of the president. The question in the case was whether the federal government could mandate that state police do a background check on prospective buyers of handguns. Scalia’s answer was a resounding no. The Court had faced another version of this federalism issue in 1992, ruling in New York v. United States, which concerned a federal law compelling states to store the low-level radioactive waste from their state, that “States are not mere political subdivisions of the United States. . . . The Federal Government may not compel the States to enact or administer a federal regulatory program. . . . It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders.”26 In the new gun control case, Scalia wrote for a majority including the three conservatives on the Court plus moderates O’Connor and Kennedy, saying, “We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”27
A ruling by Scalia on behalf of states’ rights, as opposed to federal power, and one that supported gun rights, was no surprise. In addition to his belief in state sovereignty, he was a gun owner and a hunter who loved his Second Amendment rights. But the vigor with which he demonstrated the historical basis for his conclusions served as an object lesson in what his decision-making process was becoming. Scalia presented a complete analysis of the early Founding Era history of Congress dealing with the use of state officials to enforce federal laws to conclude that it could not be done: “Not only do the enactments of the early Congresses, as far as we are aware, contain no evidence of an assumption that the Federal Government may command the States’ executive power in the absence of a particularized constitutional authorization, they contain some indication of precisely the opposite assumption.”28 Scalia then turned to several sections of the Federalist Papers that supported a strong central government and concluded: “None of these statements necessarily implies—what is the critical point here—that Congress could impose these responsibilities without the consent of the States. They appear to rest on the natural assumption that the States would consent to allowing their officials to assist the Federal Government.”29 Any reading of the history from this period, he argued, would show that the states would never willingly consent to become permanent, subordinate agents of the new national government.
While Scalia did concede that there were several early laws under which the federal executive branch could commandeer the states for assistance, those precedents for him did not extend to the present day: “To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years.” And this historical record did not change substantially for him in the late twentieth century, when the unfunded spending mandates of the federal government were pressed upon the states. “The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. . . . For deciding the issue before us here, they are of little relevance. . . . They are of such recent vintage that they are no more probative than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice.”30
Relying on his historical examination, Scalia vigorously opposed the idea of the growth of federal power at the expense of the sovereign states: “The Framers’ experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal-state conflict. . . . This separation of the two spheres is one of the Constitution’s structural protections of liberty.”31 Scalia concluded based on this historical review that there should be more balance in the federal-state relationship than the Brady law required: “It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority. . . . It is no more compatible with this independence and autonomy that their officers be ‘dragooned’ . . . into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws.”32
Interestingly, in dissenting, the liberals on the Court accepted Scalia’s changing agenda of providing historical evidence for constitutional analysis. They argued instead that Scalia’s interpretation of the historical record was neither the only one nor the correct one. In assessing the Framers’ vision of the system of federalism, Justice Stevens argued based on his own reading of the Federalist Papers: “The historical materials strongly suggest that the Founders intended to enhance the capacity of the federal government by empowering it—as a part of the new authority to make demands directly on individual citizens—to act through local officials.” And he found the same view was once shared by the states: “More specifically, during the debates concerning the ratification of the Constitution, it was assumed that state agents would act as tax collectors for the federal government.”33
For Stevens, it was this vision of a cooperative partnership between the federal and state governments in the implementation of laws that would work to the benefit of the states. Thus, Stevens argued that limiting the possibility of a cooperative enterprise would work to the disadvantage of the states, because by keeping the federal government from “enlist[ing] state officials in the implementation of its programs, the Court creates incentives for the National Government to aggrandize itself. In the name of states’ rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur, in part as a result of the National Government’s ability to rely on the magistracy of the states.”34 Stevens concluded that it should be left to Congress to determine how best to press into service the proper mixture of federal, state, and local agents into an administrative bureaucracy for the law. “If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.”35
This growing Court debate over the use of historical sources in determining the meaning of the Constitution continued the following term in the case of Clinton v. New York as the Court ruled in 1998 on the constitutionality of the presidential line-item veto power. The issue was whether the law allowing the president to veto a portion of appropriation legislation concerning a budget, a tax benefit, or a “new direct spending” provision was constitutional. Opponents argued that this process would violate the Presentment Clause in Article I, Section 7, Clauses 2 and 3 of the Constitution, giving the president the power to receive from Congress, and either sign into law or veto an entire bill within ten days after its presentation from Congress. The Republican-controlled Congress, pursuing Speaker Newt Gingrich’s “Contract with America,” had passed the line-item veto in 1996, so that it would be available for use by the next president, who they hoped would be a Republican. To their dismay, Democrat Bill Clinton won reelection and exercised the first use of the power against two provisions of their legislation: a portion of the 1997 Balanced Budget Act requiring New York to repay Medicaid money to the federal government, and a part of the Taxpayer Relief Act of 1997 that provided a tax benefit to certain food processors.
Speaking for a six-justice majority, John Paul Stevens overturned the law, arguing that it was a violation of the Presentment Clause. Stevens wrote: “Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.”36 With the question becoming how one interpreted the silence of the Framers on this question of a line-item veto, Stevens adopted Scalia’s originalism approach in examining how America’s first president, George Washington, treated this question: “The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’ . . . Our first President understood the text of the Presentment Clause as requiring that he either ‘approve all the parts of a Bill, or reject it in toto.’ ”37 Since President Clinton had approved only parts of two congressional bills, Stevens ruled that it was not a constitutional exercise of his powers. Should a president be allowed to make such partial changes, Stevens explained, it would give him the “unilateral power to change the text of duly enacted statutes,” thus making the executive branch effectively a legislative one as well.38
In dissent, Scalia, a longtime supporter of broad presidential power, approved of the line-item veto and saw the majority’s decision as an unacceptable diminution of presidential powers. For him this partial veto power was no different from the inherent power of the president to “impound funds,” that is, refuse to spend lawfully appropriated funds for reasons of economy: “Insofar as the degree of political, ‘law-making’ power conferred upon the Executive is concerned, there is not a dime’s worth of difference between Congress’s authorizing the President to cancel a spending item, and Congress’s authorizing money to be spent on a particular item at the President’s discretion. And the latter has been done since the Founding of the Nation.”39
Scalia could not understand the Court’s inability to see the semantical differences in legal language that made this “line item veto . . . no different from [the] impoundment power.” As he saw it: “The short of the matter is this: Had the Line Item Veto Act authorized the President to ‘decline to spend’ any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead—authorizing the President to ‘cancel’ an item of spending—is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities.”40 Though Scalia lost this battle, he had once again demonstrated the ease with which he could structure his originalism to reach the result he was certain was correct.
• • •
Scalia’s dedicated efforts on behalf of his brand of originalism on the Court did not go unnoticed. In 1999, Texas governor and presidential candidate George W. Bush was being interviewed by NBC moderator Tim Russert for the Sunday interview show Meet the Press. After the two men discussed various political issues, the topic turned to the Supreme Court. “Would you want to know the views of a potential Supreme Court justice on abortion before they were appointed, not for a litmus test but just [to] know their views?” asked Russert. In response, Bush outlined the process that he would be using as president to choose members of the federal court, and specifically Supreme Court justices. “Well, let me tell you what I’d like to know. I’d like to know are we compatible from a philosophical perspective on a wide range of issues. But the most important view I want to know is are you a strict constructionist, Mr. Jurist? Will you strictly interpret the Constitution or will you use your bench as a way to legislate? That’s the kind of judges I’ve named in the state of Texas. One of the—I’ve got a record on this. I’ve named four Supreme Court justices in our state. As you know, we elect judges in Texas. But when there’s a vacancy, I name, and I do.” Seeing an opening, Russert tried to make some news by pressing Bush, asking, “Which Supreme Court justice do you really respect?”
“Well, that’s—Anthony [sic] Scalia is one,” responded Bush.
“He is someone who wants to overturn Roe v. Wade,” offered Russert, hoping to reopen the earlier discussion of whether there would be a litmus test for Court appointments.
“Well, he’s a—there’s a lot of reasons why I like Judge Scalia. I tell you a guy who I—” Bush began before Russert interjected.
“So you’d want to know how a judge feels about abortion. You just wouldn’t put him on the bench blindly.”
“I want to know how a judge feels about a lot of issues. The most primary one is—”
“Including abortion?” asked Russert.
“The most primary issue—the most primary issue is will they strictly interpret the Constitution of the United States,” Bush said.
Russert thought he had enough to press for a defining description of Bush’s hoped-for Court appointments: “Will your judges and judge appointments to the Supreme Court be similar to Scalia in their temperament and judicial outlook?”
“Well, I don’t think you’re going to find many people to be actually similar to him. He’s an unusual man. He’s an intellect. The reason I like him so much is I got to know him here in Austin when he came down. He’s witty, he’s interesting, he’s firm. There’s a lot of reasons why I like Judge Scalia. And I like a lot of the other judges as well. I mean, it’s kind of a harsh question to ask because it now pits me—some of whom are friends of mine. I mean, it’s—and so, in all due respect, Judge Thomas.”41
Reporter Warren Richey of The Christian Science Monitor picked up on Bush’s statement to Russert. In an article titled “The Next Supreme Court Majority,” he highlighted the importance of appointments to the Supreme Court in the 2000 election by pointing out “speculation among court watchers . . . that Chief Justice William Rehnquist may choose to step down should a Republican win the presidency in November.”42 He further noted that George W. Bush “has said he would seek out justices in the same mold as Antonin Scalia and Clarence Thomas, the two most conservative justices on the court.” Richey’s version of the story became the way the public perceived Bush’s comments in the Russert interview. Later that same month, Richard Willing of USA Today cited the seventy-five-year-old Rehnquist as being among the “three justices [who] seem likely to retire soon.”43 This language continued throughout the campaign and could not have eluded either Scalia or Thomas.44
• • •
While the speculation and rumors kept circulating about the demise of Roe v. Wade, and the future of the chief justiceship, for the moment it did little to cheer Scalia. By March 2000, he entered another of his cyclical down periods in which he began to complain about his situation on the Court. Court reporter Kim Eisler wrote in Washingtonian magazine that the upcoming presidential election could shape Scalia’s next career move:
Scalia has been in a funk since failing to persuade his fellow justices to overturn Roe v. Wade—and thus allow states to set their own laws on abortion. . . . [He] has decided the November election is make-or-break time. If the Democrats win the White House, Scalia will resign. A Gore presidency would eliminate his chance of becoming Chief Justice and ensure that his jurisprudence will never be anything more than a footnote. If a Republican wins, Scalia would stay on. There’s a good chance a new Republican president would name Scalia or Thomas as Chief Justice.45
Indeed, Democratic candidate Al Gore, clearly a living, evolving Constitution advocate like the liberal members on the Supreme Court, promised to “appoint justices to that court who understand, and reflect in their decisions, the philosophy that our Constitution is a living and breathing document . . . intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”46 True as the second part of this story might have been, it seemed hard to believe that if Gore won, Scalia would vacate his seat for the new Democratic president to fill with a liberal evolving Constitution judge. But, the report of Scalia’s mere threat elevated the stakes of the election.
There was another matter said to be impelling Scalia to consider retirement. Eisler explained: “Also weighing on Scalia is money. . . . One year after they leave his chambers, Scalia’s clerks will be earning far more than the father of nine—a disparity that is increasingly aggravating not only to Scalia but also to the other justices.”47 These rumors caught the attention of Washington columnist Robert Novak, who wrote his own version of the “Scalia-to-leave-the-Court” story in the Chicago Sun-Times:
Word has spread through the capital’s legal circles that if Al Gore defeats George W. Bush for president, Supreme Court Justice Antonin Scalia may retire at age 64 after 14 years on the high court. Scalia, the Supreme Court’s conservative anchor, was dissatisfied with his colleagues even before President Clinton named two liberals to the nine-judge court. He grumbled privately that only Justice Clarence Thomas joined him in interpreting the Constitution as it was written instead of as it is imagined. If Gore is elected with the prospect of naming still more liberals, Scalia’s frustration could be too much, and he may call it a judicial career.48
The Court’s decisions at the end of the 1999–2000 term gave Scalia no reason to want to stay. After three terms of unsuccessfully trying to win converts to his originalism theory, two of the end-of-term decisions announced in June eerily resembled the string of losses that Scalia suffered four years earlier at the end of the 1995–96 term.49 Ironically, the first loss for Scalia came to a longtime conservative ally.
Dickerson v. United States involved the police’s right to interrogate an accused armed bank robber named Charles Thomas Dickerson. The appellant was also charged with violating federal law by using a firearm in the commission of a bank robbery. The first time he was questioned by the FBI he was not given the warnings laid out in the 1966 Miranda v. Arizona, protecting a suspect’s Fifth Amendment rights against compulsory self-incrimination. This case required that when a criminal suspect was taken into custody, before the police could interrogate him, they would have to recite a four-part warning explaining that the suspect “has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”50 The FBI relied instead on a law passed by Congress two years after the Miranda case, called the Omnibus Crime Control Act of 1968.51 This law said that statements could be taken and used even without the Miranda warnings so long as the statement was offered by a suspect “voluntarily,” based on a judge’s interpretation of the “totality of circumstances” of the interrogation and taking of the statement.
Few expected Dickerson to win in a Supreme Court dominated by a conservative pro-police majority led by longtime Miranda critic Chief Justice Rehnquist. Twenty-six years earlier, then Associate Justice Rehnquist had written an anti-Miranda majority opinion in another case, Michigan v. Tucker,52 holding that Miranda warnings were not based in the Fifth Amendment but were only “prophylactic rules” developed by the Court, and thus “not themselves rights protected by the [Fifth Amendment protection against self-incrimination in the] Constitution.”53 Now, over a quarter century later, everyone expected that the Dickerson case would provide the chief justice an opportunity to fulfill his goal by delivering the coup de grâce to the Miranda warnings, at least in federal cases. The Dickerson case showed, instead, that the 1970s Court’s solo dissenting “Lone Ranger,” as Rehnquist was then known, had turned into a pragmatic conservative chief justice who had been moderating his opinions in an unsuccessful effort to unite the conservative majority. By Court tradition, this positioning within the mainstream of the conservative wing allowed the chief justice to maintain his power to assign to writers the majority opinions in which he joined. In this Fifth Amendment case he tried to balance his views with those of his more independent-minded moderately conservative colleagues to achieve some measure of consensus and harmony on a Court that was largely directed by its swing justice, Sandra Day O’Connor.
Rather than importing his logic from the earlier Tucker case to overturn the Miranda opinion, Rehnquist unexpectedly wrote a majority opinion in which he upheld the precedent. A large part of the reason for his vote was his abhorrence of the idea of Congress passing a law using a simple majority vote to override a Court decision interpreting the Fifth Amendment, normally reversible only by a constitutional amendment or changed majority vote by the Court. As he argued, “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”54
But Rehnquist went beyond the basic separation of powers issue, and in doing so also displayed how his thinking had evolved since his 1974 opinion. He now argued “that Miranda is constitutionally based,” and added later that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Interestingly, here, Rehnquist bolstered his support for upholding the Miranda precedent by citing a Fifth Amendment dissent the year before by Scalia in which even the faint-hearted originalist had argued that when a judicial decision enjoys “wide acceptance in the legal culture,” that is an “adequate reason not to overrule” it.55
In return, Scalia filled his dissent with references to Rehnquist’s earlier anti-Miranda rule in Michigan v. Tucker, arguing, “Those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results will doubtless greet today’s decision as a paragon of moderation, since it declines to overrule Miranda v. Arizona. Those who understand the judicial process will appreciate that today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda (as of all cases): the rationale that gives it a permanent place in our jurisprudence.” Picking up on Rehnquist’s earlier argument in 1974, Scalia argued that the judicial imposition of these “prophylactic rules” on the police “is an immense and frightening antidemocratic power, and it does not exist,” which to him places it in “the realm of power-judging.” Scalia’s reading of case law indicated that he saw no constitutional basis for the Miranda holding: “Any conclusion that a violation of the Miranda rules necessarily amounts to a violation of the privilege against compelled self-incrimination can claim no support in history, precedent, or common sense, and as a result would at least presumptively be worth reconsidering even at this late date.” Indeed, over the years a series of Court decisions had cut back the Miranda protections to a mere shell of its early reach.56
As he did so often with his other colleagues, Scalia then chided the chief justice for his evolving opinion on this issue, pointing out that in Tucker he “rejected the true-to-Marbury, failure-to-warn-as-constitutional-violation interpretation of Miranda.” Scalia wrote that he would rather not have the Court create such interrogation protections but instead reserve to the people, speaking through their legislature, “the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process.” In his mind, as a result of Rehnquist both ignoring the congressional act and seemingly conferring on Miranda a greater constitutional foundation, Scalia wrote:
Today’s judgment converts Miranda from a milestone of judicial overreaching into the very Cheops’ Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. . . . I believe we cannot allow to remain on the books even a celebrated decision—especially a celebrated decision—that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.57
When the Court returned to the equally controversial issue of abortion in the case of Stenberg v. Carhart, Scalia could see how far removed he still was from the majority. In 1999 the state of Nebraska passed a law banning a late term abortion procedure called “partial birth abortion,” by which a fetus is partially delivered, then killed and removed from the woman’s womb, even after the fetus would be considered viable. Nebraska’s law allowed an exception only if such an abortion was “necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Speaking for a five-justice majority that included Sandra Day O’Connor, Justice Stephen Breyer relied on the 1992 Planned Parenthood v. Casey decision to argue that this state regulation placed an unconstitutional “undue burden” on the choice of women to secure an abortion, meaning that it had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The problem here was that this late term fetus was viable. However, the language of the law was sufficiently vague that it could be used to ban other types of abortions performed earlier in the gestation process when the fetus would be unlikely to be viable. Breyer concluded that this act must be held unconstitutional because: “Using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E [dilation and evacuation] procedures, the most commonly used method for performing pre-viability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman’s right to make an abortion decision.”58
Scalia argued forcefully in dissent that the right to choose a partial birth abortion was not one protected in the Constitution:
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. . . . The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.59
For Scalia, this decision by the Court was an unacceptable extension of the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey abortion decision: “There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised—a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is ‘undue’—i.e., goes too far.”60 For Scalia, his colleagues in the majority were offering “their policy-judgment-couched-as-law,” meaning that “those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.”61
Once more, Scalia pleaded fruitlessly with his colleagues to adopt instead his text and tradition originalist views to limit the imposition of what he saw as an undemocratic use of judicial power in the abortion area:
Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism—as well it should. I cannot understand why those who acknowledge that, in the opening words of JUSTICE O’CONNOR’s concurrence, “the issue of abortion is one of the most contentious and controversial in contemporary American society” . . . persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people—where the Constitution, by its silence on the subject, left it—and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.62
Try as he might, despite his repeated mantra that in his opinion “Casey must be overruled,” the votes on the Court for his side still were not there.
• • •
Each of Scalia’s earlier dark periods, in 1989, 1992, and 1996, in which he found himself so at odds with the Court majority, had been followed by his either changing the explanation of his theoretical approach to deciding cases or threatening to leave the Court, or both. This new dark period was different, though, as the end of the year would bring with it additional evidence that he was no longer able to control his frustrations. Soon he became engaged in a controversial battle with a reporter, this time Legal Times’s Court reporter Tony Mauro. Following up on the Washingtonian’s report of Scalia’s “frustration” over the justices’ low salary compared to the multimillion-dollar advocates appearing before him and the high starting pay of his law clerks after their year of service, Mauro and reporter Sam Loewenberg reported on the front page of the Legal Times on September 18, 2000, on Congress’s consideration of what was being called the “Keep Scalia on the Court” bill. According to the two reporters, “At chance meetings and cocktail parties with lawmakers, their staff, and federal judges, Supreme Court justices would complain early and often about the 1989 [Ethics Reform] law that barred federal judges from accepting honoraria for their public appearances [while being promised regular annual cost-of-living increases that often were not forthcoming]. Congressional staffers learned that Antonin Scalia, in particular, was angry about the loss of what he saw as legitimate extra income for underpaid judges.”63
For someone like Scalia, who according to The Washington Post had earned an extra $37,000 on top of his salary of $110,000 for fourteen speeches and appearances in the year before this new regulation was passed, much more than anyone else on the Court that year, this was a significant loss of potential income.64 Fortunately for him, Scalia still augmented his income through law seminar “teaching fees” of over $20,000 according to the Star Tribune of Minneapolis.65 Still, according to Mauro and Loewenberg, the “honoraria ban was one of the several factors that caused him to muse aloud from time to time about leaving the Court.”66
According to the story, the result was almost immediate: “To hear knowledgeable sources tell it, Scalia’s frustration, as much as anything else, was the trigger for inclusion, deep in a Senate appropriations bill, of a now-public provision lifting the ban on honoraria for the judiciary.” Accompanying the article was a photo of Scalia containing the caption “Banking on the Hill.” Within the story, a Court of Appeals judge was quoted as saying about the provision, “Scalia’s the only one who talks about it, and I’ve heard him talk about it quite a bit.” At the request of Senator Mitch McConnell (R.-Ky.), Chief Justice Rehnquist sent a letter supporting the removal of the ban, but everyone understood that such a measure would be more beneficial to highly visible jurists such as Scalia than to the relatively anonymous lower federal court judges. In truth, it was not even clear that such a ban was constitutional under the First Amendment, having already been lifted for federal executive workers by a federal judicial decision in 1993.67 And were it ever to be challenged in federal court, the very same justices who were harmed by it would be ruling on its fate.
Regardless of whether any of this report was true, or whether all of it was just part of the Washington rumor mill, with members of Congress or their staff believing that it was so, Scalia now took great offense at Mauro and Loewenberg’s story. The thin-skinned justice, who loved to attack everyone on and off the Court, responded venomously when he was the one portrayed in a critical light. On the same day that the story was published by Legal Times, one of its news affiliates, The Recorder, ran a letter of protest by Scalia. “It is not my practice to respond to erroneous reports in the media,” he began, but the Mauro and Loewenberg article “is such a mean-spirited attack upon my personal integrity that I make an exception.”68 The article, he protested, “makes gossipy, titillating (and thus characteristically Mauronic) copy, but in fact the honorarium ban makes no difference to me.” Scalia explained that “all of my outside earned income has come from teaching,” adding that it is “not covered by that ban.” Scalia argued that “contrary to the unattributed statements in the article . . . [he had] never suggested to anyone that I would leave the bench because of that limitation.” Rather, he had only discussed the ban “twice—not to urge it but to say, in response to inquiry, that I thought it was a good idea.” For him, “the article’s allegations of my preoccupation with money are not only false; they are not even plausible.”
Scalia then pointed out that in 1982 he had left law school teaching, where he could double his income through consulting and his nine children’s college tuition would be paid by the University of Chicago as one of his perquisites, to join the federal judiciary, which offered neither of these benefits. “The notion that one who was so indifferent to financial gain when he joined the Court of Appeals with nine children still to send through college,” Scalia concluded, “should contemplate resigning from the Supreme Court for financial reasons now that the last child is in her junior year is on its face absurd. No reasonable person would believe it; and only someone intent on writing a slanted story would assert it.”
Uncowed by this response, Tony Mauro replied, “It’s quintessential Scalia; he loves to play with words.” To another reporter, Mauro explained, “[Scalia] misread the article or overread it. I wasn’t accusing him of being obsessed with money.”69
Beyond the verbal bluster, it was clear that the portion of the article that Scalia really objected to was the allegation that he was considering leaving the Court for financial reasons. With others reporting that Scalia was threatening to leave the Court that year, could it be that he did not want people to think that it was finances that might be impelling this consideration? Or was he using such a threat, and now seemingly withdrawing it, as a means of lobbying for the chief justiceship should William Rehnquist retire if George W. Bush won the 2000 presidential election? If so, his calculations could not have included the controversy he and his fellow justices were about to encounter.