An honest originalist, Scalia says, will often reach judicial decisions that are at odds with personal beliefs. (University of Chicago News Office)

Scalia’s an original

The Supreme Court justice returns to the Law School and makes his opinions heard.

Traditionally, US Supreme Court justices have preferred to be read and not heard, confining their thoughts on specific cases to their official opinions. In his book The Supreme Court: How It Was, How It Is (William Morrow, 1987), for example, former Chief Justice William H. Rehnquist noted that he would “avoid any discussion of the cases and doctrines in which any of my present colleagues have played a part.” 

Current Justice Antonin Scalia took a different approach during a February visit to the Law School. Scalia advocates “originalism,” the notion that justices should adhere to the meaning of the Constitution at the time it was written. Because of his rigorous application of the concept, Scalia has been a conservative icon on the court since his 1986 appointment by President Ronald Reagan and unanimous (98–0) confirmation by the Senate.

His campus appearance came just three years after Scalia, a law professor at the University from 1977 to 1982, criticized the Law School at a Chicago gathering of the Federalist Society for what he called an abandonment of its rigorous conservative ideology. During this visit he happily accepted a gift from Law School Dean Michael Schill—an early edition of Benjamin Franklin’s autobiography—and called the University “one of two or three of the most formidable intellectual institutions in the world.” His interactions with law students ranged from the serious (a spirited but respectful back-and-forth over whether his originalist view about the Second Amendment is consistent with his First Amendment perspective) to the light-hearted (an inquiry about whose idea it was for him and fellow Justice Ruth Bader Ginsburg to take an elephant ride together—it was hers).

Scalia’s Law School lecture addressed arguments about the virtues and vices of using history to discern the meaning of the Constitution, a bedrock component of Scalia’s theory of jurisprudence. A student asked Scalia about his opinion in the 2008 case District of Columbia v. Heller, in which a Washington, DC, resident challenged portions of the Federal Control Regulations Act of 1975, including a blanket ban on handguns not registered before the bill’s passage. Writing for the majority, Scalia confirmed that the Second Amendment indeed gave private citizens the right to bear arms. Responding to the  student’s persistent questioning, he speculated that perhaps the amount of firepower available at the time of the amendment’s 1791 ratification should be the basis for determining the limits of the constitutional right.

Scalia also predicted the eventual demise of the 2005 property-rights case Kelo v. City of New London. The 5–4 decision on the takings clause of the Constitution, which grants the government the power of eminent domain, permitted a Connecticut municipal government to condemn property to be used for private development. Scalia joined Sandra Day O’Connor’s dissent in the case. “I don’t think Kelo is long for this world,” he said. “I expect that one day it will be overruled.” 

He noted that cases like Heller trigger a flood of outside input, known as amicus briefs, with sometimes as many interpretations of the historical context of a constitutional clause as there are briefs filed. “The historical evidence will sometimes be indeterminate. It may sometimes be subject to competing interpretations,” Scalia said. “But it is not infinitely malleable” to a judge’s preference. “The honest originalist,” Scalia added, “will sometimes, indeed often, reach substantive results that he does not personally favor.”

For example, Scalia was the fifth and deciding vote in the 1989 Texas v. Johnson case, which held that flag burning is a constitutional right under the First Amendment. “If I were king,” he said recently on another lecture stop, “I would make it a crime.”

But originalism, he said, despite its flaws, “far surpasses the competition.”