Scalia’s Originalist Myth

Though the late Supreme Court Justice Antonin Scalia claimed that his strict adherence to originalism made his legal conclusions inevitable, Harvard law professor and author Laurence H. Tribe argues that Scalia’s methods were various and at times inconsistent. Tribe cites enormously impactful decisions, particularly Citizens United, in which Scalia’s vagaries in methodology “should particularly remind those responsible for nominating and confirming his successor that brilliant, personally decent, and ethically respectable judges on any side of a complex and controversial issue can quote scripture to their own purposes and, in the rare instances where scripture has nothing to offer, will craft other ways to tip the scales in favor of the results that simply feel right to them.” Scalia’s “Swiss-cheese-like respect for precedent (following where the logic of precedent led—except when he thought it unwise to do so),” and “absolute adherence to method over any concern with consequences” led the Justice to craft a history of decisions that Tribe says are directly opposed to “the just and inclusive society that our Constitution and laws should be interpreted to advance rather than impede.” The lesson of Scalia’s troubling dogma should be a crucial reminder now, as the President and Senate consider his replacement. “The selection of a justice to serve for life on the nation’s highest court is far too consequential to be treated as an abstract referendum on legal methodology or as a game to be played for partisan advantage,” Tribe writes.