A standing-room-only crowd of law students and faculty packed the Ames Courtroom at Harvard Law School in the fall of 2008 to hear Antonin Scalia deliver the inaugural Herbert W. Vaughan Lecture. His topic was “The Methodology of Originalism,” and it would become his new stump speech. Three times before he had changed his basic originalism speech—in 1988–89, 1996, and 2005—but unlike the others, each of which followed his failure to control his colleagues’ votes and the direction of the Court, this one came on the heels of his greatest judicial success to date. His majority opinion in the Heller case, though, had come at a cost, causing eminent historians and a leading conservative judge to criticize him. After a summer of thought and work he was prepared to answer those critics, and in doing so change the way he lectured about judicial decision making.
Scalia’s various originalism speeches and law teaching stints had allowed him to travel for free, be seen by thousands of people, and earn tens of thousands of dollars beyond his salary. The only thing that varied from audience to audience was the questions following his remarks. However, even they were becoming so repetitive that the press coverage for his appearances had lessened over the years.
Now this new Harvard speech would allow him to renew his public persona. After being introduced by Harvard Law School dean Elena Kagan as “our nation’s foremost proponent of textualism and formalism,” Scalia used his speech to rebrand himself. His new argument would be simple, he began: since the English language wording of the Constitution is no different from the text of a statute, and lawyers were trained to interpret statutes, the lawyers who became judges were well qualified to interpret the nation’s Founding charter. Scalia argued that his theory of using history to make decisions on the enduring original meaning of the Constitution was far superior to the ever-evolving, living Constitution theory of his colleagues. “Much as I love Harvard Law School, it didn’t make me a moral philosopher,” he told the group. Scalia argued from his work in the Heller case that judges had the capability to be good historians in making determinations as to whether the Second Amendment protected an individual “right of self-defense” rather than a collective, militia-oriented, right.
In this new speech, Scalia said that he was going to explain how his originalism process was undertaken and why he believed that judges rather than historians were uniquely qualified to understand the Constitution. “The Court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written. My burden as an originalist is not to show that originalism is perfect but merely to show that it beats the other available alternatives, and that is not difficult.”1
Scalia argued that the task of the modern originalists “has become easier over time,” both because of the increased number of legal historians on law school faculties and the increasing number of briefs submitted to the Court filled with historical analysis. Contrary to the dearth of historical briefing for the 1988 Morrison v. Olson independent counsel case, he explained, “the mass of briefing” in the Heller case “was nothing short of spectacular, filling over five volumes in the Supreme Court library,” with one brief containing two hundred pages of historical material. In writing for the majority, Scalia argued: “The court had before it all the materials needed to determine the meaning of the Second Amendment at the time it was written. With these in hand, what method would be easier or more reliable than the originalist approach taken by the Court?”
As for other areas of personal rights, Scalia returned to his familiar theme of individual autonomy rights that were not in his Constitution: “In most cases, the originalist answer is entirely clear,” he said. “Did any provision in the Constitution guarantee a right to abortion? No one thought so for almost two centuries.” Scalia neglected to mention that for the same two centuries no one thought there was an individual right to bear arms, either. In saying the same about gay rights, the right to die, and the death penalty: “All of these questions pose enormous difficulty for non-originalists, who must agonize over what the modern Constitution ought to mean with each of these subjects, and then agonize again five or ten years later because times change.” The benefit of his historical approach, Scalia argued, was: “Originalism does not invite the judge to make law what he thinks it should be. The historical evidence is sometimes indeterminate or subject to competing interpretation, but it’s not infinitely malleable. . . . The honest originalist will sometimes, indeed often, reach a substantive result he does not personally favor.” So, he concluded: “If ideological judging is the malady, the avowed application of such personal preferences will surely hasten the patient’s demise, and the use of history is far closer to being the cure than it is to being the disease.”
All went well as he delivered his address, but in the question and answer session Scalia was put on the defensive. He took a question from Harvard Law School’s internationally known constitutional law professor Alan Dershowitz. Dershowitz began by noting Scalia’s failure to use originalism to decide a 2003 Fifth Amendment self-incrimination case, Chavez v. Martinez. In this case, Scalia wrote a concurrence to an opinion written by Clarence Thomas that ruled that a confession by a paralyzed drug dealing suspect in a hospital bed, made without receiving his Miranda warnings, did not violate the Fifth Amendment when it was used in a criminal proceeding. Dershowitz argued there was “not a single word about history” even though “There is a long, long history on that, [and] debates on that during the framing,” which would have led to the opposite result in the case. Dershowitz added that he “could cite 20 to 30 cases” in which Scalia “eschew[ed] history,” and wondered why that was so for the man who constantly preached the values of originalism. Scalia deflected the challenge, saying to the audience’s laughter, “I don’t remember the details of that opinion, but what did Sarah Palin say? ‘I’ll get back to you on it.’ ” Try as Scalia might to dismiss the question, Dershowitz’s charge was certainly a valid one.2
Before the year was out, another law review article critical of Scalia’s Heller decision was published by conservative Court of Appeals judge J. Harvie Wilkinson III of the Fourth Circuit in Virginia.3 Judge Wilkinson argued that in creating and protecting a new “right of self-defense” that could not be found in the wording of the Bill of Rights, Scalia was behaving more like Harry Blackmun, who had created a right of abortion in the Constitution in Roe v. Wade. As Wilkinson put it: “Both decisions share four major shortcomings: an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.”4 And to do this, Wilkinson argued, Scalia used only his expansive theory of “originalism,” while abandoning the more limiting conservative judicial techniques of “textualism; structuralism; federalism; historicism; and plain old modesty and restraint,” which had also been missing in Roe.5
In making this argument, Judge Wilkinson, a friend of Scalia, had exposed one of the main weaknesses not only in the Heller case but in the entire originalist theoretical structure: “While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite—an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”6 As Wilkinson explained: “After decades of criticizing activist judges for this or that defalcation, conservatives have now committed many of the same sins. In Heller, the majority read an ambiguous constitutional provision as creating a substantive right that the Court had never acknowledged in the more than two hundred years since the amendment’s enactment. The majority then used that same right to strike down a law passed by elected officials acting, rightly or wrongly, to preserve the safety of the citizenry.”7 In short, Wilkinson charged that the self-restraint jurisprudential theory outlined by Scalia in his writings and speeches had instead become in Heller an activist, result-oriented approach that allowed him to create rights not in the Constitution.
Despite the criticism from Posner and Wilkinson, both conservative federal Court of Appeals judges, Justice Scalia had finally found the perfect shorthand argument for his position. After arguing that American Founding Era historians could not be trusted to present the correct version of historical reality because they all disagree, Scalia said that the public should trust originalist judges to interpret the Constitution. This was true, Scalia argued, because: 1) lawyers are trained to read and interpret historical texts, 2) historians write differing interpretation of those texts, and so, 3) lawyers can weigh these interpretations to evaluate the historians. It was an elegantly simple position. Scalia, by his own admission not a trained historian, left open the question facing every academic—what do you do when other originalist-oriented scholars and judges, using the same interpretive approach but relying on different historical evidence, reach different conclusions?8
If Scalia’s goal was to create a judiciary and professoriate dedicated to the unchanging interpretation of the “enduring” Constitution, he was destined to be disappointed. In time, the uncontrollable evolution of Scalia’s originalist theory became evident. As the years went by new types of originalists, some of them arguing to expand rights to reach progressive liberal goals, appeared.9 Beyond this, time and again, moderate swing justices such as Kennedy, along with liberal justices such as Stevens and Breyer, began to include “text” and “tradition” evidence as the foundation in their opinions for reaching more evolutionary constitutional results.10
Like other legal theories, originalism was becoming just another tool to reach whatever ideological result a judge preferred. But that was never Scalia’s goal. For decades Scalia had been arguing for a static, restrictive form of interpretation. Now he was saying, Trust me, Antonin Scalia, for the proper interpretation. In short, Scalia was arguing that in law there was one single truth and only he knew it.
• • •
In the fall of 2008, Scalia was just one Court appointment away from his ideal of a perfect Supreme Court. All that was needed was one more Republican appointment of a conservative to the Court, replacing a liberal or even Anthony Kennedy, who had been slowing the pace of the conservative legal evolution. Scalia’s hopes for the future of his Court were pinned on a conservative victory in the November election between Republican John McCain and Democrat Barack Obama.
The difference between the two presidential candidates regarding the future of the Supreme Court could not have been more pronounced. In his book The Audacity of Hope, Obama made clear what type of judge he would not be appointing: “Anyone like Justice Scalia looking to resolve our modern constitutional dispute through strict construction has one big problem. The founders themselves disagreed profoundly, vehemently, on the meaning of their masterpiece.”11 During the campaign, Obama told a Planned Parenthood conference about the future Supreme Court picks they could expect from him. “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criterion by which I’m going to be selecting my judges.”12
Advisers for Obama made clear that he would be appointing justices in the mold of Stephen Breyer and David Souter, justices chosen by presidents of different political parties. These justices were known as “judicial consequentialists,” who assessed the policy results of their decision making. Douglas Kmiec, a law professor at Pepperdine University, then serving as a surrogate for Obama in discussing judicial appointment issues on the internet, explained: “These justices are individuals who tend to examine closely the consequences of legal decisions in terms of their effects on the larger society, as well as to examine a legal outcome in terms of the specifics of a particular record.”13
In contrast, John McCain was seeking to appoint conservative “self-restraint” jurists who would oppose liberal “judicial activists.” McCain’s goal was to find a jurist who decided on behalf of conservative causes such as promoting states’ rights, business interests, and police investigative powers over defendants’ rights, as well as being dedicated to reversing the liberal decisions of the past. In a speech in 2008, McCain promised, “I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.” As examples, he offered praise for George W. Bush’s appointees, John Roberts and Samuel Alito, and former Chief Justice William Rehnquist.14
As the election season dragged on, it became clear that to win, McCain would need to mobilize the conservative political coalition that had propelled his party to success in 2004. But this self-described maverick was not popular with that segment of the party. Sensing the rising importance of the evangelical Protestant vote to his success, McCain would have to find a way to enlist their support. There was good reason to expect that the political price for their backing would be paid, among other places, in the one branch of government that most concerned religious conservatives—the federal judiciary.
The religious composition of the Supreme Court spoke volumes about their concerns. The five Catholics on the Court practiced a religion shared by 23.9 percent of the American population.15 The two Mainline Protestant justices, Stevens and Souter, came from denominations representing around 18 percent of the American people. Two Jewish justices on the Court were drawn from only 2.3 percent of the American population. But the evangelical Protestants, whose 26.3 percent of the American population constituted the largest religious group at that time, were not represented at all on the Supreme Court.16 With millions of evangelical voters who potentially could tip the balance in the election, as they had in 2004, McCain could be pressed by his evangelical Christian supporters to appoint one of their members to the Court if he won. That new person would almost certainly unite with the four conservative Catholics to form an interdenominational fundamentalist majority on cultural issues. If so, Scalia would finally have a majority voting with him on social and cultural issues.
As the political campaign unfolded, Jeffrey Rosen of The New Republic posted an internet article titled “McJustice,” containing a provocative subhead, “Liberals’ Long-Feared Judicial Apocalypse Is Nigh.”17 Rosen noted: “During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court.” But in the 2008 election, Rosen saw a difference: “This year, for the first time since the New Deal era, a single election really does have the power to transform the Court. . . . [An] Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority. . . . Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.” The thesis of this piece was direct: “Many prominent conservatives are confident that McCain, who has never cared much about the judiciary, would placate his conservative base by appointing activist movement conservatives.” Rosen concluded: “Those who have long been too concerned about the future of the Supreme Court finally have reason to worry.” The only question was, would the American voters choose that path?
On the eve of the election, this debate over the ideological future of the federal judiciary took a distinctly religious turn as Catholic legal community opinion leaders began splitting apart over the presidential candidates. Not surprising, many conservative Catholics argued vigorously against Obama and in favor of McCain. In “An Open Letter to Our Catholic Friends on Election Eve” on ProLifeBlogs.com, Edward Morrissey and Elizabeth Scalia (no relation to the justice) argued that “the foundation of our faith and of social justice: the sanctity of human life” compelled them to vote against Obama.18 Other Catholics in the legal community, however, rather than voting reflexively against the pro-choice Obama, instead argued in his favor. Two prominent conservative Catholic legal scholars, Douglas Kmiec and Nicholas Cafardi, said that Obama deserved support because of his positions on moral issues such as ending the Iraq War, ending the use of torture in the “War on Terror,” and alleviating poverty, while also seeking to preserve social justice. Voting for Obama, Cafardi wrote, was the “proper moral choice for this Catholic.”19
By taking this stand as Catholics, Kmiec and Cafardi provided cover for those members of their faith who were considering campaigning for Obama, knowing that in some churches it might mean that they would be denied Communion by their conservative parish priest.20 On November 4, a majority of Catholic voters, and voters in general, chose Obama. The press declared: “Obama Victory Ends GOP Hopes for a Much More Conservative Supreme Court.”21
Scalia, though, saw a different reality. Speaking to the Federalist Society’s National Lawyers Convention on November 22, 2008, he saw nothing but a bright future for his originalism cause. “As you heard, I was present at the birth [of this organization],” Scalia told a packed State Room in Washington, D.C.’s, Mayflower Hotel: “How have the fortunes of originalism fared in the times since the Federalist Society was founded, at a time when I was still a professor at the University of Chicago? . . . I used to be able to say with a good deal of truth, that one could fire a cannon loaded with grape-shot in the faculty lounge of any law school in the country and not strike an originalist. That’s no longer true. . . . Originalism, which was once orthodoxy, at least has now been returned to the status of respectability.”22
Six weeks later, though, the flaw in Scalia’s optimistic vision of an inevitable original meaning federal court takeover was exposed when President Obama named Harvard Law School dean Elena Kagan, a progressive “living Constitution” advocate, as the solicitor general. Given Kagan’s obvious legal talent, there was every reason to expect that this might not be her last administration appointment.
At seventy-two years of age, with a Democrat in the White House, Scalia was entering the winter of his life and his judicial career. He planned to continue his struggle to guide the conservative majority, but he had to be mindful of what kind of legal legacy he would leave behind. By this age, William O. Douglas was working on his two-volume memoir that would reshape his public image. Scalia’s first chief, William Rehnquist, had partially rebranded himself as a respected writer of American history.23 His arch-nemesis on the Court, Sandra Day O’Connor, was writing her early life memoirs.24 What would Scalia do, what could he do, to build his legacy further during the Obama years?
• • •
In early May 2009, David Souter, who at age sixty-nine was the fourth youngest justice then on the Court, announced his retirement, to take effect at the end of the term. His retirement at this time gave Obama his first opportunity to make a nomination to the Court. The president’s view of the proper appointee seemed clear, as he told C-SPAN, “What I want is not just ivory tower learning. I want somebody who has the intellectual firepower, but also a little bit of a common touch and has a practical sense of how the world works.”25 He also wanted a young candidate who might stay on the Court for decades.
Obama’s choice to fill Souter’s seat was a federal judge with seventeen years of experience on the Court of Appeals for the Second Circuit, Sonia Sotomayor. If confirmed, she would become the sixth Catholic on the Court, a fact not lost on Court watchers and commentators. It appeared, though, that she was a more modern Catholic with more liberal views on social issues than those currently serving on the bench. More important than her religion, however, was the fact that Sotomayor possessed both the empathy that Obama valued in a judge, and the experience on the bench to know how to use it. She became the first Hispanic appointment to the Court. Raised in New York City’s housing projects, she called herself “Sonia from the Bronx,” and faced discrimination while studying at Princeton University, where she said she felt like “a visitor landing in an alien country.”26 She became an activist in college and during her three years at Yale Law School lobbied for Latino faculty and courses.27 She practiced both criminal and civil law, and worked for the Puerto Rican Legal Defense and Education Fund prior to her appointment to the federal bench. Since her more liberal views were similar to those of Souter, the ideological balance of the Court would not be altered by her addition. With nothing in her record to trigger the partisan circus that the Senate confirmation process had become, Sotomayor was easily confirmed by a 68–31 margin in August 2009. Because she was so likable and down-to-earth, Court watchers wondered whether she might become the Court’s “next William Brennan,” referring to the liberal Catholic who galvanized the liberals on the Court from 1957 through 1990.28
With six Catholics then on the Court, the issue of religion and the Court became a more sensitive one. An example came in the fall of 2009, when the case of Salazar v. Buono came before the Court. This dispute explored whether an eight-foot metal cross that had originally been erected by the Veterans of Foreign Wars (VFW) in 1934 at the top of Sunrise Rock in the Mojave Desert National Preserve in Southern California, and then replaced several times, represented a violation of the Establishment Clause of the First Amendment because the land was part of a national park. The case had its confusing points. The monument had been erected without governmental permits by private individuals in an effort to exempt it from constitutional prohibitions. It was intended as a war memorial, with a plaque placed near it reading: “The Cross, Erected in Memory of the Dead of All Wars.” In the years that followed, though, the spot became the site of Easter morning religious services, making it harder to argue that it was a secular monument.
These factual issues became the basis for an interesting exchange between Justice Scalia and American Civil Liberties Union attorney Peter J. Eliasberg, who was challenging the constitutionality of the cross on public land. Eliasberg began by noting that the VFW’s memorial did not, in fact, “honor all of the people who fought for America in World War I,” but rather, “just Christians.”
When he heard this, Scalia pounced from the bench:
JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that—is that—
MR. ELIASBERG: I believe that’s actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans—
JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. So it is the most common symbol to honor Christians.
The audience at that point laughed at the obvious correctness of the attorney’s observation.
JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.
MR. ELIASBERG: Well, my—the point of my—point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.
At this point Chief Justice Roberts rescued his senior colleague by changing the focus of the questioning to the wording on the plaque.29
Some in the legal community and the press had a field day with Scalia’s self-evident insensitivity to the meaning of this religious symbol and the exclusion that it represented for people from other faiths. Professor Geoffrey Stone of the University of Chicago Law School, who had already clashed with Scalia over the possible effect of the Catholic majority on the Court’s decision in the 2007 Gonzales v. Carhart partial birth abortion case, once again took him on. He posted the oral argument exchange in an internet Huffington Post blog entry entitled “Justice Scalia’s Cross,” describing it as “another example of Justice Scalia’s proclivity to see constitutional issues through the lens of his own religious understandings and beliefs.”30
A five-justice majority of the Court, speaking through Justice Kennedy, found no First Amendment Establishment of Religion violation with the memorial, arguing that this cross did not constitute governmental “endorsement” of religion, but rather was one of many acceptable religious symbols displayed for other reasons in this country: “Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”31
Despite the Sotomayor appointment, the Roberts Court continued to move in a more conservative direction. This became more evident on January 21, 2010, when the Court decided in a landmark case called Citizens United v. Federal Election Commission the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), the so-called McCain-Feingold Campaign Reform law. This law was designed to regulate and limit the use of so-called soft money in an election, whereby lobbyists and political action committees could circumvent the legal limits on campaign donations by giving money to political parties instead of directly to candidates. Parties could use this soft money donated “for the good of the party” as long as they did not mention the names of candidates running for office. The law also limited the use of “issue advertisements,” discussions by interest groups of controversial election issues, but not specific candidates, banning such ads thirty days before a primary election and sixty days before a general election. With O’Connor as the swing justice, the Court had narrowly, and repeatedly, upheld this law in the face of allegations that by regulating campaign money it limited free speech under the First Amendment.32 But now Justice O’Connor was gone, and sitting in her seat was the much more conservative and pro–corporate free speech Samuel Alito.
The case that came to the Court in September 2010 involved a movie entitled Hillary: The Movie, which was released during the run-up to the 2008 Democratic presidential primary by a conservative nonprofit lobbying group called Citizens United. The movie was framed as a documentary, but in effect was more of an attack ad against Hillary Clinton’s candidacy. The initial issue, then, was whether the movie would be subject to the restrictive issue ad requirements of the BCRA, or whether those limits violated protected speech under the First Amendment. The real issue, though, was whether it was constitutional to limit corporate free speech during political campaigns. This raised a 1990 precedent called Austin v. Michigan Chamber of Commerce, in which a Michigan campaign finance law, limiting the right of corporations to spend money from its general treasury to support political candidates during campaigns, was upheld under the First and the Fourteenth Amendments. According to an opinion authored by Justice Thurgood Marshall for a six-justice majority, “Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”33
In the opening lines of his powerful dissent in that case, Scalia defended the unlimited constitutional free speech right of corporations by citing the most provocative literary reference in his arsenal—George Orwell’s 1984: “ ‘Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidates. . . .’ In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe.” Scalia found this view to be undemocratic, “and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the ‘fairness’ of political debate.”34
The Austin v. Michigan Chamber of Commerce case triggered Scalia’s libertarian, “more speech is better” view of the First Amendment, leading him to seek the law’s reversal. In doing so, he could not call upon the wisdom of the Founders, because, given their experience with businesses supported by the British Crown, such as the East India Company, whose cargo famously ended up in Boston Harbor, the Founders well understood that corporations were much different from living human beings and should not have the same speech rights. So Scalia turned instead to Alexis de Tocqueville, who wrote in his classic study, Democracy in America, first published in 1835: “Governments . . . should not be the only active powers; associations ought, in democratic nations, to stand in lieu of those powerful private individuals whom the equality of conditions has swept away. . . . To eliminate voluntary associations—not only including powerful ones, but especially including powerful ones—from the public debate is either to augment the always dominant power of government or to impoverish the public debate.”35 Untroubled by the fact that Tocqueville was not speaking here of business corporations but of the plethora of citizen groups that he encountered in America, and the fact that during that time President Andrew Jackson was waging political war on corporations as being a threat to popular freedom, Scalia concluded: “It is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing but to prevent speech.”36
What the force of Scalia’s dissent could not accomplish in 1990 toward protecting the rights of corporate free speech during an election, the changing ideological balance of the Court achieved two decades later. The Court ruled in Citizens United v. Federal Election Commission that corporations had the same free speech rights as living people to contribute to elections. Speaking for five members of the Court, Anthony Kennedy, who had also dissented in Austin, overturned that case and ruled that because of the First Amendment, corporate speech in the form of election campaign contributions could not be limited:
The Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.37
Kennedy and the majority were following the long-held legal theory that corporations were the same as people under the law, though just where the idea originated that they were now “disadvantaged person[s] or [a] class” here was not made clear.38 For them, “The corporate independent expenditures at issue in this case . . . would not interfere with governmental functions . . . [and] we find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.”39
Echoing Scalia’s dissent in the Austin case, Kennedy and the majority argued that the government could not constitutionally “command where a person may get his or her information or what distrusted source he or she may not hear,” because if it did so it would unlawfully “us[e] censorship to control thought.” For the majority, “the First Amendment confirms the freedom to think for ourselves.”40 Unable to find a compelling interest by the government to limit the right of corporate speech in elections, Kennedy ruled that the limits on corporate campaign financing in the Bipartisan Campaign Reform Act should be overturned.41 Since there would now be no limits on corporate speech, the majority saw no problem with a politically based, even if politically motivated, documentary, such as Citizens United’s Hillary: The Movie being released during the primary election.42 And the law’s ban on issue ads close to an election was also overturned. It was here, though, that Justice Kennedy displayed what was later described by Arizona senator John McCain as his “naïveté” about politics, when he added: “[The government] reasons that corporate political speech can be banned to prevent corruption or its appearance . . . this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.”43 The continued public uproar over the Citizens United decision, and the vast sums donated by corporations to subsequent elections, suggest otherwise.44
In separate opinions, John Paul Stevens and Scalia dueled over the lessons to be drawn from the Founding period’s history as to whether corporations should have an unlimited right of free speech to make campaign contributions in an election. Stevens began his combined concurring and dissenting opinion with a simple proposition, that corporations are different from human beings and should be treated as such by the law: “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case. In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office.”45 For Stevens, corporations might be treated as people in other areas of law, but they should not have the same full rights as people under the First Amendment.
Challenging Kennedy’s lack of concern about corporate election campaign donations “giv[ing] rise to corruption,” Stevens worried about the ability of large national and multinational corporations to warp elections: “The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races. The majority’s approach to corporate electioneering marks a dramatic break from our past.”46 Harking back to his plea in Bush v. Gore about the danger of the Court inserting itself into the political world, Stevens warned: “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation . . . [and] I fear, do damage to this institution.”47
Stevens then took a page from Scalia’s playbook to explain why in his opinion the Founders never would have agreed that corporations had the same free speech rights as human beings. In a section titled the “Original Understandings” of the First Amendment, Stevens argued, using his version of originalism, that the majority’s interpretation “has it exactly backwards.” As he put it: “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.”48 Stevens was unimpressed by Kennedy’s use of the Framers to argue on behalf of the speech rights of corporations: “In fairness, our campaign finance jurisprudence has never attended very closely to the views of the Framers . . . whose political universe differed profoundly from that of today. We have long since held that corporations are covered by the First Amendment. . . . In light of the Court’s effort to cast itself as guardian of ancient values, it pays to remember that nothing in our constitutional history dictates today’s outcome. To the contrary, this history helps illuminate just how extraordinarily dissonant the decision is.”49
To no one’s surprise, Scalia in his concurring opinion took vigorous exception to Stevens’s version of Founding Era history. Based on the text of the First Amendment, Scalia argued that the protected speech rights were indistinguishable for everyone: “The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion.” Since that was so, Scalia continued, “A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. . . . Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.”50
Not everyone celebrated this ruling. As a result of this decision, so-called Super PACs would find a way to inject unlimited amounts of campaign donations by corporations, unions, large interest groups, the ultrarich, and even viewers of television comedian Stephen Colbert, into the elections, sometimes anonymously, so long as they did not coordinate their spending with the individual political candidates.
While Stevens read portions of his dissent from the bench, a most unusual move for him, observers in the courtroom noticed that the eighty-nine-year-old justice “looked weary.”51 As he delivered his brief statement “in sometimes halting fashion,” Stevens had trouble pronouncing several common words and phrases, stumbling over “rejection,” “Senate report,” “Tillman Act,” and “which observed.” Sometimes, a reporter noticed, Stevens “would take a second or third run at the word, sometimes not.”52 Stevens later recalled the concern that he had at that moment: “When I announced my dissent in the Citizens United case . . . for the first time that I had ever done it, I had some trouble articulating what I wanted to say. . . . Which troubled me.”53
Few knew that early in his tenure on the Court, Stevens had asked one of his law clerks, Stewart Baker, to draft a memo suggesting the optimal time for a justice to retire. Baker recommended that the best retirement age was roughly seventy-five. To ensure that he did not overstay his time on the Court, Stevens had also asked his then junior colleague David Souter to keep an eye on his mental acuity and let him know when he might be slipping enough to think about retiring. But with Souter now retired in New Hampshire, leaving him with no reliable outside check on his decision as to whether to leave, Stevens’s struggles during his oral dissent from the bench caused him to consider retirement: “I thought, I should give some thought to the fact that I might not be able to, I might be changing in ways I had not recognized. . . . And as the year went by, I decided that it might be appropriate to do so.”54 Ten weeks later, on April 9, 2010, Stevens announced that he would be retiring at the end of that Court term. Before he did so, though, there were still some important decisions to announce.
• • •
In April 2010, Scalia ventured back to Charlottesville, where he had once taught in the University of Virginia’s law school, to give a keynote address in honor of emeritus Professor Henry J. Abraham, one of the nation’s preeminent Supreme Court scholars. Scalia took to the podium at the law school’s Caplin Auditorium and delivered a slightly modified version of his “Methodology of Originalism” speech that he had given seventeen months earlier at Harvard Law School. This time, though, he added a new section at the end more directly responding to Judge Richard Posner’s New Republic article charging that Scalia’s originalism technique in the Heller case was just “law office history.” Avoiding the use of Posner’s name in the remarks by referring to him only as a “public intellectual” writing in a “bi-weekly magazine,” Scalia took umbrage at the “law office history” charge, which he described as a claim that the Court was being “tendentious” in using “history slanted to advocate a point of view.” “To equate chambers history with law office history is profoundly ignorant,” Scalia said, arguing in response. “Judges are very capable of determining the weight of historical advocacy.” Then, responding to Posner’s claim that the professional historians sided with John Paul Stevens’s dissent supporting only a collective militia-based right to own guns, Scalia chided, “Did [Posner] send out a survey form to them? Did he count the number of historians signing these briefs?” For Scalia, it was irrelevant how many professional historians sided with one litigant or the other, because “ultimately it is the judge’s call,” and, he added, “Figuring out the meaning of legal texts is judges’ work.” And this justice had made his call: “My own perception is that historians see the right to bear arms as beyond the military right, not limited to it.” Scalia added that Posner was not correct in charging either that “the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology,” or that “ideology drives decision in cases in which liberal and conservative values collide.” Rather, Scalia concluded, originalism does not allow a judge to distort history because the Constitution is not “infinitely malleable.”55
Later that evening, following a banquet honoring Scalia, he appeared at a small reception at the stately Boar’s Head Inn in Charlottesville. After so many years of working on my biography of him, such a small gathering offered this author a rare opportunity to speak with the justice. This presented the chance to ask a lingering question.
It was then just weeks before the Court would announce its verdict in the follow-up case to Scalia’s Heller gun control decision. The state-level version of that gun control case, McDonald v. City of Chicago, would explore whether the “right to keep and bear arms” that applied against the federal government should be incorporated into the Fourteenth Amendment’s Due Process Clause and applied against state governments as well. Like the 2008 case, this one lent itself nicely to Scalia’s originalism theory, but this time the question was whether the framers of the Civil War–era amendment had intended for the Second Amendment to apply to the states, and if so, whether it should be done through the Due Process Clause, or by resuscitating and using the Privileges or Immunities Clause that the Court had largely gutted in the 1873 Slaughter-House Cases.56 There, the Court ruled that Louisiana’s state legislature could back a single state-supported slaughterhouse monopoly in the face of complaints by other industry owners who said that this would take away their livelihood and thus deny them their “privileges or immunities” to make a living and run a business as guaranteed by the Fourteenth Amendment. For the Court, speaking through Justice Samuel Miller, this right protected only the privileges or immunities of United States citizenship, such as the rights to peaceable assembly, habeas corpus, and protection against piracy on the high seas, and not the rights of state citizenship. Since the right to make a living and run a business came under the state category, the slaughterhouse industry owners lost and the Privileges or Immunities Clause was effectively removed from the Constitution.
It was in anticipating an interesting battle between the two originalists on the Court, Scalia and Clarence Thomas, over how to interpret the Fourteenth Amendment in this case that I asked the justice about his evolving theory for decision making. Though he spoke and wrote about a “dead” and “eternal” Constitution and his inflexible, unchanging originalism theory for interpreting it, did he realize how much his own decision-making theory and approach had changed over the years? As I spoke, Scalia made very clear that he did not see it that way, looking a bit puzzled, scrunching up his face as if pained, and slowly shaking his head. As soon as the question was finished, he responded, “Why would I evolve? The meaning of the Constitution does not change.”57
“What, then, do you see as the main difference between you and your originalism ally, Clarence Thomas?”
“Clarence has no trouble, if he doesn’t like a precedent, in overturning it and sweeping it away. I don’t do that,” said Scalia.
“Would you ever change in your decision making, with historians always finding new evidence or changing their interpretations of existing evidence? What if it turned out that historians learned more from newly uncovered sources and changed their scholarship?”
“If someone brings me historical evidence that shows I was wrong in the past case, I would certainly write differently, saying ‘on the basis of historical scholarship, I previously believed that this case interpretation was correct, but it turns out not to be true.’ Then I would correct the holding.”
“So that would allow you to evolve?”
“Yes.”
At that point, another guest joined the conversation, mentioning the upcoming McDonald v. Chicago gun control case, but not by name, and asking: “What about the possible application of the Fourteenth Amendment’s Privileges or Immunities Clause to protect the right to keep and bear arms? How would you have decided the Slaughter-House Cases in 1873?”
“I don’t know how I would have decided. I probably would have agreed with them. Clarence would overturn this case if he did not agree with it. I wouldn’t do that,” said Scalia.
“Certainly it was a different Court composition, a different time, and they were closer in time to the Fourteenth Amendment ratification process,” I pointed out.
“Yes,” Scalia responded, adding, “I don’t believe in legislative history, so I would never look at the Congressional Globe to see what the framers of the Fourteenth Amendment meant by the wording.”
If Scalia was aware of how much he had evolved on and off the Court, he would not admit it. Nevertheless, any fair reading of his speeches and judicial opinions demonstrates clearly how the Court of Appeals judge, who had used a wide variety of decision-making theories, later became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was now casting himself as the judge of the historians. So while for Scalia the Constitution might not be living and evolving, he was. And as he changed, so did his interpretations, along with the type of sources he used.
More scholars of American history made clear that they were not persuaded by his unwavering claims of the intellectual correctness of his originalism theory. Historian Joseph J. Ellis, the author of the bestselling Founding Brothers: The Revolutionary Generation, dismissed Scalia’s jurisprudence in a 2010 Washington Post column:
The constitutional doctrine of original intent has always struck most historians of the founding era as rather bizarre. For they, more than most, know that the original framers of the Constitution harbored deep disagreements over the document’s core provisions, that the debates in the state ratifying conventions further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was—or should be—an ultimate arbiter of the purposefully ambiguous language of the document. Moreover, several of the most prominent Founders changed their minds in the ensuing years.
For Ellis, Scalia’s use of history would not pass muster in the academic world.
The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don’t have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the “miracle at Philadelphia” was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document. Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court—Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito—claim to believe in it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.58
Ellis added, Thomas Jefferson argued that each new generation of Americans, then roughly every twenty years, was so different that the people should scrap the Constitution and rewrite it.59
But Scalia himself had already seen a flaw in his new argument about the qualifications of judges to read, interpret, and evaluate history in order to rule on the basis of it. More than two decades earlier, in first explaining his new theory in his “Originalism: The Lesser Evil” speech, Scalia had said of originalism:
Its greatest defect, in my view, is the difficulty of applying it correctly. . . . What is true is that it is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material. . . . 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. It is, in short, a task sometimes better suited to the historian than the lawyer.60
Scalia had come a long way from this warning that he had first offered in 1988. Whereas he once said lawyers can’t do history, he had changed his view to, historians can’t be trusted to do history, so leave it to the judges to evaluate them. Contrary to the nation’s preeminent professional Founding Era historians like Jack Rakove, Leonard Levy, Gordon S. Wood, Pauline Maier, and Joseph Ellis, he now argued that the American people should trust the judges over the historians. And with “purposefully ambiguous language” to interpret, not just any judge would do. Scalia trusted only himself.
• • •
Not everyone who had served on the Court agreed. As the 2009–10 term began winding down to its closing month, with its most important decisions yet to be announced, criticism of Scalia’s originalism theory came from a most unexpected quarter. David Souter delivered Harvard University’s 359th college commencement address. Souter’s discussion of what he called the “fair reading” jurisprudential model, his name for Scalia’s and Thomas’s originalism approach, represented his powerful answer to Scalia’s 2008 Harvard Law School “Methodology of Originalism” speech.61
Souter, who had occasionally used originalism in cases such as the Lee v. Weisman public school prayer case, knew the difference between using the technique to restrict rights, as Scalia and Thomas did, and using it to expand rights, as he did. Souter began his address by defining the fair reading model as “deciding constitutional cases [in] . . . a straightforward exercise of reading fairly and viewing facts objectively.” The problem, Souter explained, is that few provisions of the Constitution are this straightforward, with many of them being open-ended rights requiring more interpretation. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.”
Souter added his own critique of Scalia’s originalism approach to that already offered by historians and other Supreme Court justices. “The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.” Souter argued that the vagueness of the Constitution requires the application of an evolving interpretation:
Not even . . . [the Constitution’s] most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.
For Souter, this judicial calculation of “meaning” is what the Scalia-Thomas technique misses: “The simplistic view of the Constitution devalues our aspirations, and attacks that our confidence [sic], and diminishes us. It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made. . . . I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise.” For him, then, the fair reading originalist approach gave his former colleagues more “certainty and control” in reaching the case results that they wanted.
On the contrary, as opposed to the certainty and inflexibility of the originalist, Souter argued that “in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust.” For him, the answer as to the best interpretation of the Constitution could be distilled from the overall vision of the Framers: “If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people. That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.”
Just as this attack was mounted from outside the originalists’ camp, there was a new one emerging from inside it. Ever since the 2008 Heller case it had seemed that Scalia was the undisputed King of the Originalists on the Roberts Court. But in the most important case announced at the end of that 2009–10 term, Clarence Thomas once again laid claim to that title.
McDonald v. City of Chicago tested a gun control law in the aftermath of the Heller case. Just like Dick Heller in the District of Columbia case, Otis McDonald wanted to keep a handgun in his home to protect himself and his family. Citing the constitutional right of self-defense in Heller, he objected to a 2009 city ordinance in Chicago and Oak Park banning the home ownership of handguns in order to protect people “from the loss of property and injury or death from firearms.”62 The new issue he raised was whether the Second Amendment “right to keep and bear arms,” which applied to the federal government, should also apply to the states through the Fourteenth Amendment. And, if it did, should the Chicago gun control law, like the D.C. ordinance in the 2008 Heller case, be overturned?
Speaking for the Court’s majority in ruling that the Second Amendment would be incorporated and applied to the states, Samuel Alito explained that the “due process [clause] protects those rights that are ‘the very essence of a scheme of ordered liberty’ and essential to ‘a fair and enlightened system of justice.’ ” By incorporating what he termed the “essence” of the “right to keep and bear arms,” Alito followed Scalia in the Heller case by extending the reach of the “core” of the Second Amendment as written by the Framers to the “right of self-defense.”63 Page after page of supportive historical analysis then followed in Alito’s opinion, allowing him to conclude: “In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”64 So, the Court applied the Second Amendment to the states and overturned the Chicago ordinance.
One critic of this substantive due process technique for incorporation was Clarence Thomas. Using his form of originalism to base his decisions on the meaning of the “unalienable rights” provision of the Declaration of Independence, protecting “life, liberty, and the pursuit of Happiness,” Thomas believed that the notion of owning guns to protect and preserve one’s own life and property fulfilled these goals.65 He argued in a solo concurring opinion that the Court should abandon its use of the Fourteenth Amendment’s Due Process Clause to apply the Bill of Rights to the states. As an alternative, Thomas offered a comprehensive historical review of the congressional debates over the creation of the Fourteenth Amendment, contemporaneous public speeches and newspaper articles, and other historical sources to argue that the Privileges or Immunities Clause was meant to protect fundamental rights against state restriction.66 This allowed him to argue that for the Fourteenth Amendment’s state “ratifying public” the “right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.”67
And just what was the right that states should now be protecting? Thomas argued that a primary purpose for protecting the right to keep and bear arms in the Privileges or Immunities Clause was to safeguard the right of the newly freed slaves, whose lives were often threatened, to own and carry guns for self-defense. Based on this history, Thomas concluded: “In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty.”68 With this opinion Thomas had once again staked his claim as the Court’s most disciplined originalist.
• • •
Thomas’s opinion was largely overlooked by the press in favor of the judicial fireworks created by a final verbal battle between Scalia and John Paul Stevens. True to his statement at the University of Virginia, Scalia was unwilling to overturn the Slaughter-House Cases and rely on the Privileges or Immunities Clause of the Fourteenth Amendment to decide this case. Instead, in a concurrence, Scalia made clear that despite his doubts about the process of incorporating the Bill of Rights using the Fourteenth Amendment’s Due Process Clause, he was still willing to sign on to Alito’s majority upholding the “long established and narrowly limited” line of precedents holding this way. The purpose of his concurrence, Scalia wrote, was “only to respond to some aspects of Justice Stevens’ dissent.”69
And Scalia had understandable reasons for doing so, for in his valedictory dissenting opinion, Justice Stevens took issue with Scalia’s entire originalism approach one final time. Nearly ninety years old, and about to conclude more than thirty-five years of service, the third-longest-serving justice in the Court’s history, Stevens issued a ninety-eight-page dissent. Stevens relied solely on his interpretation of what he called the “liberty clause” of the Fourteenth Amendment, his name for the Due Process Clause itself, to decide whether it could be defined to include the Second Amendment’s guarantee “to keep and bear arms,” and then apply it to the states. As he did in Heller, Stevens argued that the Second Amendment protected the collective militia and “security” rights, meaning that only guns designed to protect the home should be applied to the states. Then, continuing his debate against Scalia’s originalism theory from the Citizens United case earlier that term, Stevens argued, “The judge who would outsource the interpretation of liberty to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.”70
Stevens challenged Scalia’s use of a historically derived fundamental rights approach to create rights such as “self-defense” that are not mentioned in the Constitution or the Fourteenth Amendment. The problem for Stevens in determining a right’s “fundamental” qualities is that one person’s gun ownership right could negatively affect another person’s right to life and property. He argued: “First, firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities.”71 For Stevens, the Fourteenth Amendment’s “liberty clause” alone had never been used to protect a right either of gun ownership or self-defense. “Despite the plethora of substantive due process cases that have been decided . . . I have found none that holds, states, or even suggests that the term ‘liberty’ encompasses either the common-law right of self-defense or a right to keep and bear arms. . . . It does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality.”72
While Justice Alito praised Stevens’s work here as an “eloquent opinion,” Scalia threw judicial etiquette out the window. In an opinion reminiscent of his virulent attacks against O’Connor, Scalia criticized Stevens by name sixty-one times in the text and footnotes of his twenty-four-page concurrence. Scalia mocked Stevens’s expansive interpretation of the Constitution as being “as valid as the Court’s only in a two-dimensional world that conflates length and depth.”73
As he had done many times before, Scalia attacked his colleague’s reasoning ability personally, trying to persuade the reader that paying any attention to his opponent was not worth their time.
JUSTICE STEVENS moves on to . . . his theory . . . that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’ ” . . . The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.74
Scalia believed that reliance should be placed on the views of the voters, limited by the words of America’s Founders. Arguing in conclusion, Scalia said, “JUSTICE STEVENS abhors a system in which ‘majorities or powerful interest groups always get their way’ . . . but replaces it with a system in which unelected and life-tenured judges always get their way. . . . It is JUSTICE STEVENS’ approach, not the Court’s, that puts democracy in peril.”75
Just as his former colleagues William Brennan and Harry Blackmun had done near the end of their careers, Stevens directly challenged Scalia’s ability to do his originalist historical analysis. “It is hardly a novel insight that history is not an objective science, and that its use can therefore ‘point in any direction the judges favor,’ ” wrote Stevens. “Yet 21 years after the point was brought to his attention by Justice Brennan, JUSTICE SCALIA remains ‘oblivious to the fact that [the concept of tradition] can be as malleable and elusive as “liberty” itself.’ . . . Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions. The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole.”76
Like Richard Posner and Jack Rakove before him, Stevens criticized Scalia’s work as being nothing more than “law office history,” employing “the malleability and elusiveness of history” to decide cases whichever way the judge preferred. In accusing Scalia of “conducting this rudderless, panoramic tour of American legal history,” Stevens argued, “JUSTICE SCALIA’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtue, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the judge’s cards are laid on the table for all to see, and to critique.”77 Using his own expansive interpretive approach, combined with some historical analysis, was more appropriate, Stevens argued. “My method seeks to synthesize dozens of cases on which the American people have relied for decades. JUSTICE SCALIA’s method seeks to vaporize them. So I am left to wonder, which of us is more faithful to this Nation’s constitutional history? And which of us is more faithful to the values and commitments of the American people, as they stand today?”78
Stevens closed his blistering dissent by firing one final verbal volley: “JUSTICE SCALIA’s method invites not only bad history, but also bad constitutional law. . . . It makes little sense to give history dispositive weight in every case. . . . It is not the role of federal judges to be amateur historians. And it is not fidelity to the Constitution to ignore its use of deliberately capacious language, in an effort to transform foundational legal commitments into narrow rules of decision.”79 Contrary to Scalia’s view that these answers should come from the voters in a democracy and the state legislatures, Stevens placed the responsibility for protecting liberties with an independent judiciary. “Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined . . . has the capacity to improve, rather than ‘[im]peril’ . . . our democracy. It all depends on judges exercising careful, reasoned judgment. As it always has, and as it always will.”80 And with that, John Paul Stevens hung up his judicial gown and retired, leaving the nation to wonder which judicial liberal would continue the constitutional battle with Scalia.