Reviews of Justice Antonin Scalia’s career tend to focus on legal philosophy and political outcomes. But generations from now, Scalia’s writings will still be studied for his political philosophy: his practical understanding of how and why American government works, and doesn’t. And the battle over his replacement will ironically illustrate those same themes.
Scalia often said that separation of powers and federalism were the most important parts of the Constitution: Without those checks on accumulated government power, individual rights would never be safe. He was fond of noting that plenty of countries (even the Soviet Union) had fine-sounding Bills of Rights that were dead letters because no power could make the government respect them. He shared James Madison’s cynical (or is it realistic) view that sooner or later every branch of government would expand its powers as far as the others would let it. But he added his own counterpoint: Elected officials would gladly trade away power to avoid accountability.
Two lone 1988 dissents set the tone. Morrison v. Olson let judges appoint an independent counsel to exercise the executive power of prosecution and limited the president’s authority to remove him. Scalia thundered that this not only invaded the president’s executive powers, it also diffused accountability, allowing runaway partisan prosecutions for which nobody need answer to the voters. That’s what undermined Kenneth Starr’s investigation a few years later: conducted without the political legitimacy of a congressional or Justice Department investigation, it was dumped in the lap of a Senate that blanched at taking responsibility for its conclusions.
Mistretta v. United States upheld the sentencing guidelines promulgated by the United States Sentencing Commission. Scalia argued that nothing so important as criminal sentences should be farmed out to an independent commission that was neither Congress nor a court of law, and presciently predicted:
I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research.
Scalia’s 1992 dissent in Planned Parenthood v. Casey warned that the Court’s own arrogation of power over abortion cases would lead the Senate to retaliate with more litmus tests for nominees:
[I]f in reality our process … consists primarily of making value judgments … confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them.
Scalia crusaded for years to rule part of the Armed Career Criminal Act unconstitutionally vague. His 2011 ACCA dissent in Sykes v. United States highlighted legislative incentives:
[A]s the volume [of federal crimes] increases, so do the number of imprecise laws. … Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty.
In Talk America, Inc. v. Michigan Bell Telephone Co., a 2011 case involving FCC regulations, he warned that vague regulations were even worse than vague laws:
[W]hen an agency promulgates an imprecise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s meaning … deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases.
Scalia’s often acid critiques of the Court’s abuse of “legislative history” instead of focusing on statutory text were likewise driven by his practical sense that it is ridiculous to treat the horse-trading business of lawmaking as if it reflected a single “legislative intent” shared by hundreds of legislators. Laws are what they say, not what someone or other “meant.” As he wrote in 2011 in DePierre v. United States, “[e]ven if [a witness] had not lectured an undetermined number of likely somnolent Congressmen on ‘the damaging effects of cocaine smoking on people in Peru,’ … we would still hold that the words ‘cocaine base’ mean cocaine base.”
Scalia’s federalism opinions similarly stressed the Framers’ divisions of power and the clear lines of accountability they promoted. From his 1997 majority opinion in Printz v. United States (striking down part of the “Brady Bill” requiring state officials to run federal handgun background checks) to his 2012 opinion on Obamacare’s Medicaid expansion in NFIB v. Sebelius, Scalia warned that dragooning states into running federal programs would leave voters unsure who to blame if they went awry.
In a final irony, Scalia’s view of power will be graphically demonstrated by the fight over his replacement. The stakes are so high because the closely-divided Court has acted as Scalia so often railed against: expanding its control over as many areas of life and law as it could reach, sometimes with the cooperation of political branches that quietly preferred to let unelected judges take the heat for tough decisions. The once-decorous dance between the president and the Senate in nominating and confirming judges was built on a series of precedential norms, which have broken down over the past several decades under the merciless logic of power.
The likely result: The president will insist on a nominee unacceptable to the majority of senators, and the Senate will refuse to lift a finger to confirm. The battle for control will strip bare many previous fictions, leaving two branches of government fighting openly to limits of their power. As Scalia wrote in Morrison, “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
Dan McLaughlin is a lawyer in New York City.