Guest Essayist: Joerg Knipprath

During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law.

Antonin Scalia had close immigrant roots. His father came from Sicily, but, as a future professor, was not of the working-class stereotype associated with such immigrants. Scalia’s mother was born of Italian immigrant parents. Antonin was an only child, which may explain why he and his wife had nine children. He graduated from Georgetown University and Harvard Law School, in both cases at or near the top of his class. After jobs in a law firm, as a law professor at the Universities of Virginia and Chicago, and in the federal government, he was appointed to the Court of Appeals for the District of Columbia Circuit, the most influential appellate court in the nation and often seen as a step to the Supreme Court. President Ronald Reagan appointed Scalia to the highest court in 1986, with unanimous approval by the Senate.

Supreme Court justices typically fall into one of three categories. There are those who view cases through a particular jurisprudential prism. They have developed a coherent constitutional philosophy that guides them. Done intellectually honestly, that philosophy does not, and should not, produce politically predictable results, “liberal” or “conservative,” as those terms might be applied to the issue of the day. This judicial philosophy is often developed in concurring or dissenting opinions, as the judge stakes out a position currently out of political or jurisprudential fashion or hews more to principle than can be accommodated for the necessary five votes for a majority opinion. Often, the fruits of the judge’s intellectual endeavors do not ripen until after his death, when changed political and social conditions produce new constitutional realities. In an analogy to baseball, the judge is playing constitutional long-ball. He may strike out more often in the short term, but when he connects, it has significant impact well beyond the immediate case. That describes Justice Scalia, who wrote more concurring opinions than any justice in the Court’s history, and who wrote more dissents than all but two. Some other justices in that mold were Stephen Field, Joseph Bradley, Oliver Wendell Holmes, Jr., Louis Brandeis, and Hugo Black. On the current Court, Clarence Thomas may turn out to fit that bill. John Marshall and Joseph Story were of the same type, but, due to the Court’s institutional infancy, their jurisprudential perspectives had immediate and, often, lasting impact.

Another type is the careful swing justice, who may or may not have a well-developed jurisprudential framework to guide his holdings. To the extent there is such a philosophy, it is often adapted to the popular mood of the time. Such a judge also may decide cases narrowly, with only a weak connection to a broader judicial philosophy, and maneuver himself to the center of the Court’s ideological spectrum to maximize his power. The decisions and the reasoning underlying them are readily distinguishable in future cases as new facts are ever-so-slightly different. If the Court is closely balanced ideologically, it becomes “Justice X’s” Court, with arguments tailored to capture this swing vote. Using baseball again, the judge is playing small-ball to maximize his influence by repeated victories in narrowly-decided cases, but without long-term impact on the big issues of constitutional law. Justice Anthony Kennedy is the model. Among many others have been Justices Sandra Day O’Connor and Potter Stewart.

The third type is the one who provides the needed votes for the majority or additional votes for a dissent, but with limited impact on the development of constitutional law. They are not committed “centrists” or “big thinkers.” Such judges may write majority opinions even in notable cases, they may contribute to the development of non-constitutional doctrine, and they may have behind-the-scenes influence due to their avuncular personalities and lobbying skills. But their impact is too occasional and disconnected. Most judges are of that group.

For the Court to function well institutionally, the third group is essential. Having too many of the first would lead to jurisprudential battles that would impair compromise and resolution of concrete disputes. Having nine Scalias on the Court, especially representing different and, likely, clashing jurisprudential perspectives would challenge the Court’s capacity to settle conflicts between political entities, including lower courts, in specific cases and controversies. After all, federal judges cannot be simply professors of jurisprudence engaged in academic speculations.

Among Scalia’s many contributions to constitutional law is the concept of “originalism.” This is not a substantive principle but a process of constitutional hermeneutics, the interpretation of the words of the document. The process was not original—to use an apt term—with Scalia. Rather, American judges have been using this as the orthodox constitutional analysis for two hundred years. Scalia’s contribution was to resuscitate this approach after the Warren Court and the legal academy had institutionalized the “Living Constitution” methodology that envisioned the Constitution’s text as a persuasive reference, but not as authoritative. A “Living Constitution” court would read that text with the overarching objective to keep it in tune with desirable societal norms as determined by the judges. Scalia was so successful that academics debated various strands of originalism, a sure sign that an intellectual idea has “arrived.”

Originalism rests on the proposition, some might say self-evident truth, that the Constitution’ text is authoritative. Further, the text must be read as originally understood by those who created the Constitution. That includes those in the state conventions who voted on the Constitution, much as the words in a contract are determined by the understanding of the signatories. It would also consider the understanding of those who wrote and debated the drafts of the Constitution in Philadelphia, since they informed the delegates at the state conventions. Finally, it might consider the general citizenry’s understanding of such terms, as reflected in dictionaries. Although Scalia hesitated about this, some originalists argue that, in addition to formal constitutional amendment, sophisticated application of the doctrine allows for gradual evolution and adaptation of constitutional law through statutes and judicial decisions that have been accepted by the public as shown by long, unchallenged adherence. Such weight of tradition gives legitimacy to meaning. However, if the matter of unconstitutionality is in doubt, Scalia would have the “democratic default” control and uphold the people’s choice reflected in the challenged law. His jurisprudence leaves little room for “unenumerated” constitutional rights.

A necessarily brief selection from his many important opinions provides a window into Scalia’s jurisprudence. In Printz v. U.S. (1997), Scalia wrote for a 5-Justice majority that overturned a provision of the Brady Act. In a lengthy historical analysis, Scalia found that the interim background check obligations the federal law imposed on state law enforcement officials for gun purchasers “commandeered” those officials into federal service in violation of structural federalism. The statute nullified the states’ status as “sovereigns” over their own governmental machinery. This originalist approach supported the “New Federalism” of the Rehnquist Court. Justice Thomas concurred in the result and hoped that a future Court would hold for the first time that the Second Amendment protects an individual right to own firearms for self-defense.

In D.C. v. Heller (2008), Justice Thomas’s wish came true. Heller, who carried a firearm in his job to protect federal judges, now could also keep and bear a weapon commonly used for self-defense to protect himself in his home. In another lengthy and detailed historical analysis, Justice Scalia analyzed text, English precedent, state constitutions, proposals for amendments during the adoption of the Constitution, commentary by legal writers, and actions and decisions of early Congresses and courts. As an interesting originalist counterpoint, the main dissent by Justice John Paul Stevens also used textual and historical analysis. Justice David Souter, too, had used that method in his Printz dissent, which shows the influence that Scalia’s insistence on original understanding of the text as the only legitimate approach to constitutional adjudication has had in framing the terms of the Justices’ debate.

Justice Anthony Kennedy discovered in Obergefell v. Hodges (2015) a right of same sex couples to marry as part of the liberty protected under the 14th Amendment. Scalia disagreed and excoriated the majority for what Kennedy grandiloquently called the Court’s “reasoned judgment”:

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases….Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . .’  One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’ The ‘we,’ needless to say, is the nine of us…. This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

That paragraph captures all of Scalia’s substance and style: The resort to original understanding, the support for self-government, the distaste for judges as philosopher-kings, and the slashing, often sarcastic, rhetorical style that supporters of his jurisprudence enjoyed, but that sometimes was too barbed to promote collegiality on the Court. But Scalia was not done:

“The opinion is couched in a style that is as pretentious as its content is egotistic….Of course the opinion’s showy profundities are often profoundly incoherent….The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”

And in a parting shot in a footnote, he lamented,

“If, even as the price to be paid for a fifth vote, I ever joined an    opinion for the Court that began: ‘The Constitution promises          liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and          express their identity,’ I would hide my head in a bag. The    Supreme Court of the United States has descended from the     disciplined legal reasoning of John Marshall and Joseph Story to        the mystical aphorisms of the fortune cookie.”

Justice Kennedy was a periodic target of Scalia’s (well-deserved) barbs. Kennedy’s style is often moralistic and smug, heavy on emotion and spare on constitutional law, but predictably elitist and with a predilection for judicial supremacy. In U.S. v. Windsor (2013), Kennedy wrote for the Court in the 5-4 decision that struck down the federal Defense of Marriage Act. The basis of the ruling was unclear, as Kennedy talked alternatively about principles of federalism, equal protection, and due process. He did assert that only bare hostility or dislike could have produced the DOMA. Scalia attacked that last assertion and called the opinion “scattershot” and “legalistic argle-bargle.”

In Planned Parenthood v. Casey (1992), Kennedy wrote for a “joint” plurality opinion, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” He also quoted that passage approvingly in Lawrence v. Texas (2003). Scalia derided this “famed sweet-mystery-of-life” passage and concluded, “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.”

In Lee v. Weisman (1992), Scalia dissented from Kennedy’s opinion for the Court in a 5-4 ruling that declared voluntary prayers at middle and high school graduation ceremonies to violate the Establishment Clause. Kennedy found that, while there was no legal compulsion to participate, peer pressure would cause the children to succumb at least to the invitation to stand, even if they did not mouth the prayer. Scalia characterized Kennedy’s analysis as “psycho-journey,” and “psycho-coercion.” He lamented that it was

“a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays…has come to ‘requir[e] scrutiny more associated with interior decorators than with the judiciary’ ….But interior decorating is a rock-hard science compared to psychology practiced by amateurs. The Court’s argument…is, not to put too fine a point on it, incoherent.”

Scalia’s faith in the core constitutional principle of self-government also led him to reject the reliance by the Court, particularly Justices Kennedy and Breyer, on foreign practice to define the meaning of the Constitution. As foreign legislatures and, even more problematic, unelected foreign courts do not participate in American politics or culture, this democracy deficit makes irrelevant their views on what constitute “evolving standards of decency” for criminal penalties or fundamental rights for personal autonomy.

Dissenting in Troxel v. Granville (2000), he crystallized the difference between the role of judges and that of voters and legislators regarding metaphysical appeals to rights not specified in the Constitution:

“In my view, a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims “all Men…are endowed by their Creator.’ And in my view that right is also among the ‘othe[r] [rights] retained by the people’ which the Ninth Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or disparage.’ The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the   founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    I have really enjoyed the biographical essays. They are entertaining and they really help me understand why different rulings occur.

    The following paragraph concisely captures what I ‘ve long thought but could not collate.

    “Although Scalia hesitated about this, some originalists argue that, in addition to formal constitutional amendment, sophisticated application of the doctrine allows for gradual evolution and adaptation of constitutional law through statutes and judicial decisions that have been accepted by the public as shown by long, unchallenged adherence. Such weight of tradition gives legitimacy to meaning. However, if the matter of unconstitutionality is in doubt, Scalia would have the “democratic default” control and uphold the people’s choice reflected in the challenged law. His jurisprudence leaves little room for “unenumerated” constitutional rights.”

    The above is a healthy, push/pull tension, check and balance. If statutes adhere to long accepted original thought they should be upheld by the courts. If they do not legitimately adhere to original thought or intent then let the public debate drive the issue to conclusion via Constitutional amendment, or not.

    One of the principle’s of biblical interpretation is always interpret minor passages by major passages. Always let the passage be the passage in the context it was written. Poetic passages in Psalms and Proverbs are to be understood as such – they are not the same as the doctrinal teachings in the Epistles. This does not mean they are lessor, but different and when read as poetic we gain a deeper and greater understanding of the character and nature of GOD enumerated in the Epistles. Same can be said for historical books that record – ah, history Simply, history documents His story, Epistles enumerate [explains] His Story, poetry elaborates [provides insight] into His story.

    Thank Justice Scalia.



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