The three deeply conservative justices whom Donald Trump named to the Supreme Court—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—profess adherence to the judicial philosophy of the late Justice Antonin Scalia. Their appointments all but ensure not only a conservative majority on the Court for years to come but also the transmutation of Scalia’s jurisprudence—based on the principles of judicial restraint, originalism, and textualism—from an outsider legal theory into a mainstream constitutional doctrine.
These principles took shape gradually in Scalia’s lectures and judicial opinions, which are excerpted in a new collection, The Essential Scalia. Judicial restraint is, roughly, the idea that judges must not make what he called “legislative judgments” of public policy but should restrict themselves to applying the law. Originalism is the idea that “the provisions of the Constitution have a fixed meaning” and “mean today what they meant when they were adopted, nothing more and nothing less.” Textualism is a method of interpreting statutes by relying solely on “the text of a statute” rather than “subjective legislative intent” as well as any “broader social purposes” the law may have been intended to serve. Linking the three was generally intended to constrain judges from what Scalia saw as illegitimate activism.
Yet at the moment of its ascendance, conservative legal thought is facing a crisis. Tensions between Scalia’s principles had mostly been noted only in law journals. Last summer, however, they burst into public view in surprising Supreme Court rulings on high-profile issues like abortion and gay and transgender rights. In June Medical Services v. Russo, Chief Justice John Roberts, a lifelong conservative who during his confirmation hearing compared the job of judging to an umpire calling balls and strikes, provided the decisive vote to affirm the right to abortion as expressed in Planned Parenthood v. Casey (1992). Roberts relied on the Scalian principle of judicial restraint to violate a bedrock objective of recent legal conservatism: overturning the right to abortion first elaborated in Roe v. Wade (1973) and preserved in Casey. He was not the first conservative justice to unexpectedly embrace judicial restraint when it came to reproductive rights. Anthony Kennedy, Sandra Day O’Connor, and David Souter did it in their joint opinion in Casey, yet Roberts had been appointed precisely to prevent such a recurrence.
More shocking was Gorsuch’s opinion in Bostock v. Clayton County, in which he interpreted Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating “because of sex,” as protecting not only gays and lesbians but also transgender people. Gorsuch based his reasoning on Scalia’s theory of textualist statutory interpretation and was joined in the ruling by Roberts. In dissent, Justice Samuel Alito, a stalwart conservative who was once nicknamed “Scalito”* for his adherence to the master’s teachings, denounced Gorsuch’s opinion as a “pirate ship” flying the false flag of Scalian conservatism. As if to add insult to injury, Gorsuch then wrote another opinion, in McGirt v. Oklahoma, using his version of Scalia’s legal methodology to recognize the Creek Nation as sovereign over a large area of eastern Oklahoma. He was joined by the Court’s four liberals. This time even Roberts thought Gorsuch had gone too far.
Scalia’s legal approach adheres closely to the theory of legal positivism, which in its modern form goes back to the English philosopher John Austin (1790–1859). Legal positivism depicts law as a set of rules determined by factual description of existing laws and institutions, without reference to normative moral arguments about what the law should be.
Scalia’s legal positivism can be traced to Justice Oliver Wendell Holmes, Jr., a close reader of Austin who served on the Court from 1902 to 1932 and remains one of the most influential justices in US history. Holmes married the philosophy of legal positivism to the practice of judicial restraint in constitutional cases. Just as legal positivism argued against judges relying on morality to determine the law, Holmes argued that judges should not claim to find then fashionable libertarian theories of morality or laissez-faire economics embedded in the Constitution, as conservative justices did at the time. He maintained that they should leave choices about contested policy questions to the political branches of the government.
The Essential Scalia opens with “The Rule of Law as a Law of Rules”—delivered as the Holmes Lecture at Harvard Law School, not by coincidence. The title neatly captures its argument that the law should consist of rule-following, not moral reasoning. Scalia’s commitment to judicial restraint had a Holmesian bent to it, too: in the lecture, he argued that courts should declare clear legal rules in part because doing so would inhibit judicial activism. When “I adopt a general rule” as a Supreme Court justice, he argued, “I not only constrain lower courts, I constrain myself as well.” A justice committed to rules could not “indulge” his policy preferences in future cases.
The leading antipositivist of Scalia’s generation was the philosopher and legal scholar Ronald Dworkin, who developed much of his interpretivist theory of law in these pages. Dworkin’s work justified the discovery or invention of new constitutional rights that characterized the Court presided over by Chief Justice Earl Warren from 1953 to 1969 by showing how all judicial interpretation necessarily involves the use of political morality. In response to Scalia, Dworkin liked to point out that even Scalia’s judicial-restraint positivism rested on a political and moral theory about interpretation: that it would be a violation of democratic principles for judges to make new law because that is the responsibility of Congress or the people.
The Scalian position on judicial restraint, for his followers, dovetailed with textualism as a method of interpreting statutes, and with originalism as a method of interpreting the Constitution. When it came to the Constitution, the idea was to ascertain the document’s “original public meaning”—the meaning as it would have appeared to a reasonable contemporary observer—by looking to the history of ratification. This was supposed to be an objective, fact-finding undertaking, not a contestable act of interpretation, which as any historian will tell you is a very doubtful proposition. Scalia’s goal for originalism was to constrain the justices to deriving meaning from the past. For him, this resonated with the value of judicial restraint: unlike the activist justices of the Warren Court, who made up new constitutional doctrines, originalist justices would avoid creating new rights that were unimagined and unimaginable at the Founding.
From the start there were latent contradictions between originalism and judicial restraint. Judicial restraint called for judges to defer to Congress’s authority to pass laws. But what if the original meaning of the Constitution required striking down laws that had been passed in the centuries since ratification? Judicial restraint also embraced the Burkean principle of precedent, calling on judges to respect past rulings rather than striking out on their own with new theories. But what if a fresh analysis of the Founding era revealed that the precedent was wrong according to the original public meaning of the Constitution?
Scalia himself claimed to consider the mandate to follow precedent as creating occasional, limited, pragmatic exceptions to originalism. (With characteristic brio, he said those exceptions made him a “faint-hearted originalist.”) Scalian conservatism assumed that liberals would always be judicial activists and that conservatives could therefore generally engage in judicial restraint to get conservative results. That assumption seemed to hold true for much of Scalia’s career, as liberals gradually extended constitutional rights to gay people and he dissented from each extension. (Only one of these, his dissent in the gay marriage case Obergefell v. Hodges (2015), is included in The Essential Scalia, which shields readers from Scalia’s condemnation of an earlier gay marriage decision, US v. Windsor (2013), as “legalistic argle bargle.”)
In reality, the apparent alignment between judicial liberalism and judicial activism was a historical accident. Justice Clarence Thomas’s jurisprudence has long demonstrated that a strict originalism can dictate radical judicial activism. Thomas invokes originalism more consistently than any other justice, frequently urging his colleagues to reverse long-standing precedents that he considers inconsistent with the Constitution’s original public meaning. And he happily votes to strike down statutes because of his activist originalism.
As for textualism, Scalia’s idea was that determining the meaning of statutes by looking only at the words, not the intent of the legislature or the purpose of the statute, would constrain judges from pursuing “their own objectives and desires” and from putting their normative moral preferences into the law. Textualism therefore manifested both legal positivism—law as rules—and judicial restraint. It was Scalia’s distinctive contribution to Supreme Court jurisprudence, and he wrote and lectured about it more consistently and powerfully than he ever did about originalism.
The trouble with the close association between textualism, legal positivism, and judicial restraint is that a judge who ignores the evidence of legislative intent altogether is not necessarily giving up power relative to the legislature. To the contrary, a judge who exercises independent judgments on the meaning of statutory texts may be empowered to find meanings that were not or could not have been contemplated by the authors. The idea that textualism substantially constrains judges from inserting their own normative values may be, as Dworkin always insisted, simply a mirage.
Roberts’s turnabout on abortion can be understood by looking at the contradiction between the Scalian principles of judicial restraint and constitutional originalism. He certainly believes that Roe v. Wade had no grounding in the original public meaning of the Constitution. But in the June Medical decision, he embraced the logic that Kennedy, O’Connor, and Souter had announced in Planned Parenthood v. Casey, according to which the justices must respect long-standing precedent rather than overturning it. Roberts had to choose between two Scalian principles. He chose restraint over originalism, which for the legal conservative movement was a betrayal of its longtime goal of banning abortion. The intellectual challenge posed by Roberts’s abandonment of originalism in favor of judicial restraint is deeper still: it reveals that accomplishing the movement’s objectives would entail violating one of its core stated values—judicial restraint. The internal coherence of what might be called the Scalian trinity is thus beginning to break down.
Roberts still believes, as he always has, that the best strategy for legal conservatives is to chip away gradually at the right to abortion. In his opinion, he rolled back an expansion of Casey that had occurred three years before. Yet gradualism with respect to limiting abortion rights is fundamentally inimical to the originalist commitment to reading the Constitution according to its original public meaning. It is a form of pragmatism, not of judicial principle.
Gorsuch’s textualist decisions on Title VII and the Creek Nation represent the victory of textualism over judicial restraint. They demonstrate that, in the hands of at least some conservatives, textualism is capable of reaching liberal outcomes—which could help convince some skeptical liberals that it is a genuinely evenhanded method of legal interpretation, not just a cover for conservative values. Seen from this perspective, Gorsuch’s decisions mark a great victory for Scalian textualism. With the Court’s liberals signing Gorsuch’s opinion (and Roberts joining in the LGBTQ case), textualism is now the leading method of statutory interpretation before the Supreme Court.
Yet this victory for textualism came at the expense of judicial restraint—and here Gorsuch’s distinctive perspective becomes clear. There is no honest way to characterize his opinion in the LGBTQ case as anything other than judicial activism. For well over half a century, the Civil Rights Act of 1964 was not understood to protect against homophobic or transphobic discrimination. Now, after a judicial opinion, and without further legislative action, it does. Having chosen Scalian textualism over Scalian judicial restraint, Gorsuch is the judicial interpreter as hero, or (to stunned conservatives) as antihero.
Gorsuch’s motives are no doubt complex. He wants to succeed Scalia as the intellectual leader of legal conservatism. This is a man who, in early midlife, put aside his burgeoning career in government and private practice to complete the doctoral dissertation he had begun at Oxford years before. Now, with these opinions, he has demonstrated something that looks very much like a commitment to a neutral method of statutory interpretation—which will appeal to many, though by no means all, legal intellectuals, including liberals.
It’s worth noting that Gorsuch’s dissertation was written under the supervision of John Finnis, the prominent Oxford exponent of natural law. Far from separating law and morality, Finnis sees the two domains as fundamentally intertwined. While Gorsuch was careful in his dissertation (and subsequent book, The Future of Assisted Suicide and Euthanasia) not to adopt a natural law position himself, the entire intellectual milieu of his training can be described as deeply anti-positivist. His commitments in the philosophy of law are therefore profoundly different from Scalia’s. The crucial point is that Gorsuch is a thoroughgoing activist.
Gorsuch chose to reveal this activism in cases whose outcomes went against the political position most observers would have expected of him, which will grant him greater credibility when he deploys it to conservative ends, whether in future statutory cases or constitutional ones. But for many conservatives, his recent decisions represent disloyalty. Josh Hawley, a young Republican senator from Missouri who is a product of the Federalist Society and clerked for Roberts before the justice became more moderate, said in a speech on the Senate floor:
This Bostock case and the majority who wrote it represents the end of something: it represents the end of the conservative legal movement, or the conservative legal project, as we know it…. If you can invoke textualism and originalism in order to reach…an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.
The Creek Nation case offered another opportunity for Gorsuch to drive home his activist textualism, this time by staunchly refusing to accept that Congress had ever taken away tribal sovereignty in eastern Oklahoma. The core argument of Gorsuch’s opinion is that Congress’s words matter. Of course, in practice, Congress has been hypocritical in its treatment of Native Americans, repeatedly trying to deprive them of sovereignty without explicitly saying so. Gorsuch simply took Congress at its word. The effect of the opinion is to substantially unsettle existing legal understandings in the state. This is judicial activism at its most admirable, or, if you are a Burkean like Roberts, at its most dangerous.
How will these tensions in conservative jurisprudence affect Americans? The question has become especially pressing since Justice Ruth Bader Ginsburg was replaced on the Court by Amy Coney Barrett, the first justice to have clerked for Scalia. (Gorsuch clerked for Justice Byron White, who had by then retired from the Court but still had judicial duties, and for Anthony Kennedy, and Kavanaugh also clerked for Kennedy.) As an academic at Notre Dame Law School, her alma mater, Barrett presented herself as a defender of Scalian orthodoxy.
In a 2017 essay entitled “Originalism and Stare Decisis,” Barrett argued that the tension between stare decisis—essentially, the doctrine of precedent—and originalism, a tension that Scalia occasionally acknowledged, “is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict” will come from overturning precedent. Her explanation was that the Supreme Court would never reexamine the constitutionality of well-settled cases like Brown v. Board of Education (1954) or laws like the Social Security Act of 1935. She maintained that when Scalia did vote to overturn precedent, it was never “super precedent,” which she defined as “cases so deeply embedded that their overruling is off the table.” And she quoted with approval a remark she attributed to Scalia—“I am a textualist. I am originalist. I am not a nut”—while suggesting that the tension between originalism and precedent “can be resolved as a matter of principle.”
Barrett will now have ample opportunity to discover whether the tension she downplayed is really so overstated. With Roberts no longer the swing vote, the Court is certain to be asked to overturn Casey and, by extension, Roe. Is Casey a “super precedent” it would be unthinkable to overturn, as Roberts appears to believe? In her confirmation hearing, Barrett listed a set of super precedents that excluded Roe. The swing vote would therefore likely be Kavanaugh, who is more pragmatic than Barrett and in June Medical tried to get the Court to avoid the issue altogether by sending the case back to the lower courts for more fact-finding.
Looming in the background for Kavanaugh, and even for Barrett, is the threat that overturning Roe would motivate Democrats to expand the Supreme Court. Adding liberal justices would allow the Court to reverse the reversal of Roe and block conservative justices from pursuing other jurisprudential objectives. Democrats would need majorities of both chambers of Congress to accomplish this. As of this writing, control of the Senate is uncertain. And Biden has made clear that he prefers not to expand the Court, announcing he will create a bipartisan commission to study the issue. Court-packing remains merely a possibility that could lead to more Democrats winning Senate seats (including in the Georgia runoffs). A groundswell of popular opinion could change Biden’s mind, or at least force his hand. The fate of Roe is therefore still in doubt no matter how Barrett votes on it.
Another issue where Barrett would find herself faced with a contradiction between precedent and her version of originalism is affirmative action in higher education, which has remained constitutional only by dint of successive swing justices’ willingness to accept the rationale that the goal of diversity warrants some consideration of race as part of a holistic admissions process. It cannot seriously be maintained that such considerations were in the minds of the framers of the equal protection clause of the Fourteenth Amendment. Yet it would be transformative and unsettling judicial activism for the Court to end completely the use of race in admissions.
Gorsuch’s next step, now that he has established a willingness to follow the law wherever it leads him, will likely be marshaling the forces of conservative activism against the modern administrative state. The constitutional issue at stake here is whether federal administrative agencies like the FDA, EPA, FCC, and FTC, which have wide latitude to interpret federal statutes in order to regulate the safety of the drugs and vaccines we take, the quality of the air we breathe, the scope of antitrust regulation, and much more—violate the tripartite system of separated powers laid out in the Constitution, as radical originalists maintain. The attack has an originalist constitutional basis; it may also have deeply anti-progressive real-world consequences.
One concrete example of this originalist concern is a landmark 1984 case, Chevron v. National Resources Defense Council, which requires the courts to defer to agencies’ “reasonable” interpretation of ambiguous federal statutes. To Gorsuch, this so-called Chevron deference violates judicial authority to interpret the law and hence elevates the agencies over the courts.
Scalia accepted Chevron deference, and in fact wrote an important lecture-essay providing a constitutional justification for it. Its limitation on judges fit his notion of judicial restraint and did not violate his idea of textualism. Since Scalia wrote, the doctrine has become a cornerstone of contemporary administrative law. A justice who voted to overturn it would, in the eyes of most administrative lawyers, be a “nut.”
Barrett may not be willing to wear that label. To Gorsuch, however, and to Thomas, Chevron deference, like much of the rest of modern administrative law, violates the original public meaning of the Constitution, established at a time when there were no administrative agencies empowered to interpret federal statutes, much less to bind the courts to their interpretations. Gorsuch’s decisions in matters of administrative law will show even more forcefully than his recent decisions that the Scalian trinity can no longer cohere. Other conservatives will have to openly embrace the values of precedent and judicial restraint, or else concede the ground of legal conservatism to Gorsuch’s originalism.
If the Supreme Court weakens or eliminates Chevron deference and imposes other limitations on the administrative state, activist conservative judges will be emboldened to eschew judicial restraint and to use originalism and textualism to overturn progressive regulations that the agencies have adopted. This fight will take on particular urgency if Democrats do not control the Senate and Biden must make policy primarily via regulation rather than legislation. More than just the future of legal conservatism lies in the balance.
December 17, 2020
An Awful and Beautiful Light
A Well-Ventilated Conscience
The Oldest Forest
In mid-November, in an apparent bid to compete with Gorsuch for leadership of the conservative legal movement, Alito gave a rousing, ideological speech to a Federalist Society gathering, in which he attacked progressives for insufficiently respecting religious liberty. Criticism from liberals, which ensued, can only have been anticipated and welcome. ↩