Scalia Defends ‘Originalism’ in Law School Lecture

U.S. Supreme Court Justice Antonin Scalia’s argument against judicial activism is straightforward. As an unelected judge he—and his eight colleagues on the nation’s highest court—shouldn’t be making laws.

“What are you, crazy?” he asked a capacity crowd of about 2,600 people at Northrop Auditorium on the University of Minnesota campus on Tuesday. “Are you going to let this group of people determine what the Constitution is? It’s so unrepresentative of this country. It’s so undemocratic.”

While many legal scholars and a majority of the current Supreme Court justices believe in a “living constitution” open to interpretation, Scalia does not. In his 2015 Stein Lecture, sponsored by the Law School, the longest-serving associate justice engaged in a passionate defense of “originalism,” a legal philosophy dedicated to a literal reading of the U.S. Constitution.

In other words, if there’s nothing in the Constitution about gay marriage, abortion, or other social issues, the Supreme Court shouldn’t be making definitive judgments about them. “I’m not complaining about the result,” Scalia said. “I’m complaining about the manner in which it was achieved.”

After all, Scalia noted, the Supreme Court is an unelected body of mostly East Coast lawyers, all of whom attended one of two prestigious law schools—Harvard or Yale. “Its biggest problem is legitimacy,” he said. “There’s nothing in the Constitution that says we are the last word.”

Instead, Scalia argues, policy decisions should be left to those elected to local, state, and federal offices—or the Constitution should be amended. It’s a point he returned to again and again during a question-and-answer session. When one man prodded him about a particular issue, Scalia responded, “The way to bring about your ideals is to persuade your fellow citizens. It’s hard work.”

When Scalia was appointed by President Ronald Reagan in 1986, some court observers predicted his “likeable personality” would make him a swing justice. But due to his unyielding judicial philosophy, that didn’t happen. “The originalist has nothing to trade,” he said.

Added Scalia, “I have no aspiration to be a swing justice. I want to be right.”

So he’s often resorted to crisply written dissents that crackle with indignation. Articles and books have chronicled Scalia’s quotable minority opinions, including this excerpt from his dissent in Atkins v. Virginia (2002), a death penalty case: “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

“I write my dissents for law students,” Scalia said Tuesday. “I try to make them memorable. This generation is gone.”

When asked by a Law School student about writing in “legal style,” the justice was dismissive. “There’s no such thing as writing in ‘legal style,’” he said. “Most bad writers are bad because they are writing in ‘legal style.’”

Scalia encouraged students to read the Atlantic Monthly instead of USA Today and pore over the words of 19th-century novelists Charles Dickens and William Makepeace Thackeray. “As you read, so will you write,” he said.

On other topics, Scalia offered these pithy comments.

• On one person’s complaint about the court’s decision in Burwell v. Hobby Lobby Stores, a religious freedom case: “Oh, God, get over it.”
• On whether he believes in stare decisis, the legal principle of precedent: “I’m a textualist. I’m an originalist. I’m not a nut.”
• On why he lectures at colleges during his spare time: “I go to law schools to make trouble.”

Scalia also offered a glimpse into a possible future ruling. In recent years, the court has limited the ability of governments to enact the death penalty. Currently, Ohio, Oklahoma, and other states are delaying executions for a number of reasons. Soon, Scalia hinted, the practice may be abolished. If the court were to take that step, Scalia said, “It wouldn’t surprise me.”

Created by Professor Robert Stein (’61), the Stein Lecture series features talks by prominent judges, lawyers, and government officials on a topic of national or international interest. Past speakers include U.S. Supreme Court Justice Ruth Bader Ginsburg and Vice President Walter F. Mondale.