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Scalia's legal theory

Antonin Scalia became the most influential American judge of the early 21st century not through landmark court rulings but through slashing philosophical dissents.

Scalia challenged the legacy of crusading liberalism left from Chief Justice Earl Warren's court, and he was often just as tough on the loosey-goosey centrism of the Burger-Rehnquist court that followed. His arguments proceeded from a view that courts should honor the clear meaning of the language used by the framers of the U.S. Constitution and by the authors of laws. 

The conservative justice, who died at 79 last week after nearly 30 years on the high court, charged his colleagues with not being faithful enough to the texts they were called on to interpret, and by stages his dissents drew much of the legal world into a conversation about what faithfulness in applying legal texts means. 

Scalia's philosophy of textual loyalty had two main branches, reflecting the two kinds of cases that make up the Supreme Court's docket: constitutional interpretation, in which the court decides what the nation's founding document means; and statutory interpretation, in which it decides what particular laws passed by Congress mean.

The most famous part of Scalia's philosophy was his originalism on the constitution. This was a frank challenge to the long regnant philosophy of the so-called Living Constitution, in which it was assumed that judges can and should continually help evolve constitutional principles in ways suited to a modern society.

Legal progressives dismissed the idea of going back to original understandings as both intellectually unserious (how can we even know what was going through people's heads in a locked room in Philadelphia?) and practically dangerous (if we enforced Founding-era ideas, modern government might shrink). But originalism gained traction as lawyers, law students, and lower court judges absorbed Scalia's dissents. Unlike many judicial opinions, they were both clearly argued and fun to read.

Scalia was in no sense the inventor of originalism (how could he be, if it were true?) but he refined it into a far more powerful instrument. The point, as "Nino-philes" came to appreciate, was not to identify the Framers' original intent, which would indeed call for too much psychological speculation, but to identify the original public meaning of the document's wording, for which there was usually ample evidence in the form of dictionaries and contemporary usage.

In an answer to the charge of impracticality, Scalia described himself as a "faint-hearted" originalist. If fixing an old error in interpretation would result in toppling some major federal program that had been relied on for decades, better to leave it alone as precedent. But at least judges should turn down requests to introduce new errors, and look for ways to fix old ones when the heavens would not thereby fall. Overturning the decisions that had ratified the New Deal, no; recognizing that the Second Amendment did establish then and now an individual right to own guns, yes.

On statutes? Here again, the key move was to keep one's eye on the text itself and not be distracted by the spin of later commentaries and secondary sources such as Congressional committee reports, which never carried the authority of actual law themselves.

What was the payoff for all this restraint, self-control and fidelity? For Scalia, the rule of law. Judges would give up much of their discretion to inject personal values and beliefs into their rulings. That would provide more predictability and certainty about how future cases would come out, enabling everyone to plan their actions and avoiding uncertain jeopardy and cause for litigation.

This brings us to the third plank of the Scalia philosophy: Clear rules are better than hazy standards that depend on judges' subjective opinions. A clear rule in this context might be "Police cannot send dogs onto your property to sniff without a warrant, though they can step right up to the property line." A hazy standard might be "police can carry out dog searches when reasonable” with, oh, a 13-point after-the-fact balancing test employed to decide whether any given search is reasonable.

This passion for bright-line rules helps explain one of the oft-noted paradoxes about Scalia - his penchant for turning up as the best friend of criminal defendants one day, but a staunch ally of the police and prosecutors on the next. It all depends on the text. Because the Constitution does give criminal defendants a clear right to confront their accusers, for example, he waged a lonely campaign with partial success to revive defendants’ confrontation rights after a long period of disuse. The same was true of many search and seizure, surveillance, and sentencing controversies. But where the text was equally clear the other way - as with capital punishment, clearly contemplated in the Constitution's language - he wouldn't budge.  

That led to many cases - not least his landmark ruling that burning the U.S. flag is a form of expression protected by the First Amendment - in which he ruled for what he considered to be bad guys. "If you're going to be a good and faithful judge," he said in one speech, "you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong."

As critics often noted, he didn't always live up to these ideals. In Bush v. Gore, or the medical marijuana case Raich v. Gonzales, Scalia's usual federalist instincts failed him, and it could look as if he, too, was making it up as he went along. But that those are the standards we now expect justices to meet is itself evidence of how Antonin Scalia changed the terms of judicial debate.

Walter Olson is senior fellow at the Cato Institute and author of several books about law.