Justice Antonin Scalia expresses himself so forcefully in his opinions and speeches, and is so uninhibited about insulting anyone who disagrees with him, that it's natural to assume he actually believes in something. Most people interested in public affairs are sure they know what it is. I wonder if any of them are right.
For instance, in Apprendi v. New Jersey, Scalia wrote:
Justice Breyer proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.
It's classic Scalia: expressing his contempt for Breyer in a parody too gross to be taken seriously, while setting forth his alternative vision with an aphorism that suggests settled conviction.
On the very next page of the official volume, Justice Thomas wrote of "the codification of the common-law rights in the Fifth and Sixth Amendments". Scalia joined this part of Thomas's opinion. So Scalia agrees (or, at the time he was given the opportunity to sign on to Thomas's draft, agreed) that the fifth and sixth amendments codify "the common-law rights".
That's not what the Constitution says. It's what Thomas and Scalia think it ought to mean.
Just this week, in U.S. v. Gonzalez-Lopez, Justice Alito made a strong argument based on the text of the sixth amendment. He wrote:
The majority makes a subtle but important mistake at the outset in its characterization of what the Sixth Amendment guarantees. The majority states that the Sixth Amendment protects “the right of a defendant who does not require appointed counsel to choose who will represent him.” Ante, at 3. What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant’s counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant’s counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment.
This, you might think, is exactly the sort of text-based interpretation most likely to appeal our nation's leading "textualist," Justice Scalia. But guess who wrote the majority opinion rejecting it? Guess who held the sixth amendment up to a light bulb and discovered a previously-unnoticed right written in lemon juice - the right of a rich person to have the services of any attorney he chooses, even one who doesn't belong to the bar of the particular state?
"Rich person" is not an invidious phrasing, by the way. "The [sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Only those with the means can enjoy the new sixth amendment right invented by Scalia and the Court's "liberals," just as only those with the means get to sample from Forbes' list of the 12 best places to go to prison. Justice Scalia held that the wealth-based distinction emanated from the penumbra of the words actually found in the sixth amendment, though I'm not sure that was the exact phrase he used.
When he's not being characterized as a "textualist," Scalia is generally termed an "originalist." In fact, that's what he calls himself. (Here he is again.) An originalist, Scalia said, believes "that you give the text the meaning it had when it was adopted." Some of our most brilliant legal scholars take Scalia at his word. In a recent New Republic, sometime-blogger Cass Sunstein wrote that "Justices Antonin Scalia and Clarence Thomas believe that the Constitution should be read to mean what it meant at the time of ratification."
In 2004's Crawford v. Washington, Justice Scalia went through a parody of a historical analysis in an effort to present himself as a champion of the originalist school. But in this month's Davis v. Washington, the Court's first attempt to answer the question that's been bedeviling every criminal court in the country for two years (what in the world is Crawford supposed to mean?), he abandoned the originalist view, swinging all the way over to the fuzzy multi-factor test. (See post 127.)
Scalia actually went a good deal further than that: he renounced the originalist viewpoint of his earlier opinion. Responding to Justice Thomas' principled originalist dissent, he wrote:
Restricting the Confrontation Clause to the precise forms against which it was originally directed is a recipe for its extinction. Cf. Kyllo v. United States, 533 U. S. 27 (2001) .
(Kyllo was also a Scalia opinion. Scalia is that much-admired thing, a swing vote, in criminal cases, except for death penalty cases, a field in which he has managed to work ahead of the rest of the Court, delivering his votes years in advance of actually hearing the cases.)
Note the mission creep built into Scalia's rejoinder: to save the sixth amendment from extinction, the Court must find a new reason for its continued existence, much as the base-closing commission tries to find new missions for obsolete military bases that are particularly important to their local economies. The power the sixth amendment gives the Supreme Court comes first, the reason for that power's existence is a detail to be filled in later.
Professor Bainbridge recently summed up all there is to say about Scalia's constitutional beliefs:
Scalia goes back and forth between originalism, textualism, and traditionalism with no apparent hierarchy for resolving conflicts between the three approaches nor any consistent metric for deciding which to apply in any given case. It is, perhaps, his greatest weakness as a jurist and the main reason his historical legacy is likely to be relatively modest.