Disagreeing with Michael Sean Winters on "Justice Scalia's Legacy"

A few days ago, at Distinctly Catholic, Michael Sean Winters posted this, "Justice Antonin Scalia's Legacy."  In my view, the piece is mistaken in several ways, starting with the claim that it was Justice Scalia who "helped accelerate the transformation of the court into a political football."  In fact, it was a constant and consistent refrain of his, in opinions and in speeches, that one of the many reasons to regret the Court's overreaches and mistakes in politically and philosophically charged areas is that these overreaches and mistakes naturally made the Court and its composition into political footballs.  As he (correctly) pointed out, if the Court insists on assuming for itself the power to decide and purportedly settle political disputes over matters that people really care about, it should not be surprised when people come to care a lot about who is sitting on the Court.

Winters pronounces that the Justice was "an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other[,]" referring to "originalism" and "textualism."  To be sure, "originalism" (which, contrary to Winters's suggestion, is, in the literature, many things and not one) is controversial and contestible, but it's pretty clearly "tenable" (I've seen it done!)  "Textualism" in statutory interpretation anyway is entirely mainstream and unremarkable (thanks in no small part to Justice Scalia).  But, Winters does not accurately describe either interpretive method and so the post has a straw-man flavor about it.  For example, he confuses Justice Scalia's view with one that asks about the Founders' "original intent."  Winters also argues that the two "ideologies" "conflict with each other" but this claim rests entirely on his misdescription of "textualism" as the view that "words must be interpreted in a kind of fundamentalist matter."  Nor is "textualism" the view that "the Constitution is a self-interpreting text."  Nor is there any conflict between Justice Scalia's view that in statutory-interpretation cases the "legislative history" of the statute is not a helpful guide to the statutory text's meaning and his "originalism" -- which, again, does not involve a "search for explanations as to what was intended by the drafters of a given text."

I share, as a general matter, what I take to be Winters's view that the Court should defer to the politically accountable branches . . . except when the Constitution clearly requires otherwise.  (Interestingly, this "deference" is what Justice Scalia called for in his Smith opinion, which Winters regards as deeply wrong.)  And I think there is plenty of room for reasonable disagreement about when, in fact, the "Constitution clearly requires otherwise."  Justice Scalia thought, in Citizens United, that the Constitution did require otherwise (he was right), and Winters disagrees, which is fine.  (I probably agree with Winters regarding the Affordable Care Act cases.)  But there's nothing un-conservative (or opportunist or hypocritical) about concluding, from time-to-time, that a particular policy favored by a political majority has been taken off the table by the Constitution or that a particular precedent was wrong and should be abandoned.  And, in any event, if one steps back and surveys the Court since, say, the mid-1960s, and asks which justices have been most inclined to invalidate legislative or other policy choices on the basis of adventurous interpretations of the Constitution, I think Justice Scalia appears at least as deferential as the more liberal justices employing "living constitutionalism."

There are lots of interesting arguments to be had about how, exactly, judges should go about identifying the meaning of the Constitution's text, constructing doctrines and standards, and deciding cases.  In my view, Justice Scalia's brand of "faint-hearted originalism" has a lot to recommend it over its various rivals and textualism seems clearly the appropriate approach to the business of statutory interpretation.  Of course, I could be wrong.  In any event, I think it's very important -- when dealing with these debates, and with the three-decades-long "legacy" of one of the most consequential jurists in the post-war period, to engage claims and ideas carefully and accurately (even within the admitted limits of the blog-post format).

Winters followed his "Legacy" post with this one, on the "Consequences of Justice Scalia's Death."  (I think his predictions regarding particular pending cases are right, though there is no basis at all for the suggestion that Justice Scalia's Smith decision (his "handiwork") suggests any reservations about RFRA or about the wisdom of and need for legislative accommodations of religion.)  Near the end of the post, he returns to the matters I was discussing above:

As I noted yesterday, for all the volumes that have been written about Originalism and Textualism, they are not ideas that are as rigorous as they pretend to be, and even those of us who are not legal scholars, and who may treat them superficially when compared to the treatment they receive from those scholars, nonetheless we sniff what is wrong about them, and the abuses to which Scalia put them. There was a lot about the Founding he seemed not to grasp, not least its intensely anti-Catholic temper. And there is no text for which there is a mere “objective” reading. His ideology made judicial interpretation seem easy, and to the unwashed masses, if not to the scholars of the law, that ease fed their own desire for simplistic political solutions.

Again, there might well be some things "wrong about" (or at least incomplete about) originalism as a method of constitutional interpretation (my own view is that it wins-out in a second-best kind of way) and I'm sure that it (like any method) can be abused (or just inaptly deployed).  But, again, I don't think Winters's presentation of what these ideas actually are is accurate and so it is difficult to know how one who endorses his description could really "sniff what is wrong about them."  I don't think either of Winters's post actually identifies or presents an argument against "originalism," as Justice Scalia and most contemporary legal scholars understand it, other than to list some decisions (like Heller and Citizens United) that he thinks were wrongly decided and that Justice Scalia wrote or joined.  (Readers who are interested in learning more might enjoy this volume, "Constitutional Originalism:  A Debate.")