Justice Scalia’s Legacy

Justice Antonin Scalia’s views on much of national-security litigation are embodied in an awkward moment during my clerkship interview. Justice Scalia, like most judges, believed that an aspiring law clerk’s transcript should be mostly black-letter law courses, rather than esoteric seminars and other “fluff.” (He’s right, but that’s another story.) My law-school record had a respectable proportion of black-letter law but also plenty of Lawfare fodder: international law, IHL, and various national-security-law seminars (including some taught by Lawfare’s own Matt Waxman). The Justice scrutinized my class list with a skeptical expression; unsettled, I volunteered that my principal academic interest was national-security law.

He replied: “We don’t get many of those cases up here. I hope.”

He didn’t mean that he was uninterested in the field. To the contrary, Justice Scalia had intense and wide-ranging intellectual curiosity—I can’t think of a single intellectual subject he affirmatively disdained. Rather, it expressed his discomfort with judicial intervention in national-security decisions beyond the judiciary’s ken, whether by maneuvers of statutory construction (see his dissent in Hamdan v. Rumsfeld) or by constitutional interpretation (see his dissent in Boumediene v. Bush). This impulse, of course, was not specific to national-security law; an animating motive of textualism and originalism is to prevent judges from usurping by “interpretation” authority properly reserved to the other branches. But this concern was particularly visible in his attitudes towards national security and the judicial role therein.

Ben Wittes asked that I share some thoughts on the legacy of my former boss in national-security law. (The Justice was a stickler for hyphenating phrasal adjectives, like “national security” in the phrase “national-security law,” so I’ll follow his practice here.)

I should start by saying that I, like all of the Justice’s former law clerks, am stunned and deeply saddened by the Justice’s sudden passing. Above all, we are thinking of Mrs. Scalia—the Justice’s lifelong companion and the wise and beloved matriarch of our law-clerk clan—and the Justice’s many children and grandchildren. While the legal community will mourn the icon, the Justice’s clerks mourn a beloved teacher and friend. He was brilliant and gifted, but, more importantly, he was a kind and gentle man who treated his subordinates with generosity and affection. He was a humble man, courteous to everyone he met, great and small, and remarkably immune to the pretensions that so often accompany high office in Washington. And he was a bon vivant, sparkling conversationalist, and legendary raconteur whose company was a precious reminder of life’s joys. It is hard to believe that he is gone.

Perhaps unsurprisingly given the skepticism he expressed in our interview, the Justice’s principal jurisprudential legacy does not lie in national security. It lies, rather, in legal interpretation; he was the greatest and most articulate defender of originalism and textualism. He also left a deep imprint on other areas of the law: separation of powers, administrative law, criminal procedure, and the First Amendment, just to name a few.

That is surely more than enough for one brilliant career, and it would overstate to suggest that the Justice was also a landmark figure in national-security law. Skimming a list of the Justice’s majority opinions, nothing jumps out to me as a canonical national-security-law case. (I don’t think that Boyle v. United Technologies Corp., the oft-criticized contractor-immunity case, qualifies.) That said, I wonder whether any Justice other than Justice Jackson qualifies as a titan of national-security law. As Justice Scalia noted in that first conversation, the Court simply doesn’t see many national-security cases, and those it does tend to be about jurisdiction, the reach of habeas corpus, or some other procedural issue.

In the absence of a landmark national-security-related majority opinion, I will highlight a dissent: specifically, the Justice’s dissent in Hamdi v. Rumsfeld. In that case, the plurality, per Justice O’Connor, held that the 2001 AUMF authorized the government to detain a U.S. citizen captured fighting with the Taliban—at least as long as hostilities were ongoing in Afghanistan.

Justice Scalia, joined by Justice Stevens, disagreed. In their view, “[a]bsent suspension of the writ [of habeas corpus], a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.”

For reasons I won’t recount here, I have never been entirely convinced by the Scalia-Stevens view that the Suspension and Treason clauses together impliedly preclude noncriminal wartime detention of citizens caught fighting with the enemy. I nonetheless chose the Hamdi dissent because it illuminates two underappreciated aspects of the Justice’s approach to the job.

The first is a firm adherence to his bedrock jurisprudential principles regardless of his policy preferences. For the Justice, the only variable to be discovered in the process of judicial decision was the governing rule of law in each case—not the equities between the parties; not the policy stakes. For him, judging was simply a matter of solving for that variable using the interpretive tools sanctioned by textualism and originalism. As law clerks, our bench memos to the Justice were limited to two pages. No lengthy summaries of the facts; no long discussions of the policy merits of each side’s proposed rule. The only question that mattered was “what is the legal rule that resolves this case?”

A rough but fair measure of any judge’s commitment to principle is how frequently the judge’s legal reasoning leads to a real-world result that diverges from his or her presumed preferences. No judge is perfectly consistent, of course. (Some readers may wish to pause here to gesticulate angrily while shouting “Bush v. Gore! What about Bush v. Gore!” Take a moment and get it out before we move on.) But Justice Scalia accepted what he presumably considered “bad” real-world results with striking frequency—more than any other Justice, I would venture, and often to the exasperation of his conservative allies.

For example the Justice believed firmly in moral agency and thus was not predisposed to sympathize with criminals. Yet, as a jurist, he was nonetheless a great friend to criminal defendants as a jurist, including, in my term alone, many who were obviously guilty.

Why? The Bill of Rights provides many powerful protections for criminal defendants. And the Justice gave effect to those provisions with the same rigor he did the Second Amendment or the Constitution’s separation of powers. During my term, we frequently found ourselves aligned with the three female justices in criminal cases, either in a four-Justice minority or a slim five-vote majority made by Justice Thomas or Kennedy. An underappreciated feature of the Roberts Court has been the regularity with which Justice Scalia went “left,” and Justice Breyer went “right,” on criminal cases. It’s unfortunate this isn’t more widely recognized, as perhaps it would have weakened the widely-held and damaging belief that the Court comprises two lockstep, ideological voting blocs.

Justice Scalia’s willingness to follow his view of the law to the detriment of his policy preferences was not limited to criminal cases. To give an example from my term: The Justice—a tenacious defender of the States’ reserved powers in our federalist system—voted against the State of Arizona’s efforts to require proof of U.S. citizenship as a supplement to the federal voter registration form. The Justice never shared whether he liked that idea or not—he considered the law’s policy merits irrelevant to his task as a judge—but most would assume that were he a state legislator, he would have favored the bill. Yet the text of a federal statute whose constitutionality was not before the Court required States to “accept and use” the federal registration form. For him, that command’s meaning was clear: “Accept and use” has to mean accept and use without imposing additional hurdles on the applicant. Thus the State lost, with Justice Scalia writing the majority opinion.

The Justice’s detractors often derided his approach to judging as “rigid.” But in judging—particularly in appellate judging, which is principally about discerning legal rules, rather than exercising discretion—rigidity is actually another word for integrity. Returning to Hamdi: The Justice plainly felt no sympathy for terrorists and their sympathizers and, I suspect, would have preferred to defer to the Executive in matters of wartime security. But he read the Constitution to forbid Yasser Hamdi’s detention. To him, nothing else mattered.

The second consistent Scalian tendency Hamdi illustrates is the Justice’s preference for clear rules over malleable—and thus manipulable—standards. The Justice blasted the Hamdi plurality for using a mushy balancing test to “Make Everything Come Out Right”: upholding Hamdi’s detention while replacing the Suspension Clause’s stalwart right to be charged or released with various lesser procedural entitlements invented by the Court.

This is not widely appreciated, but as a Scalia clerk, the Justice’s preference for clear rules was a predominant feature of our jobs. We knew better than to make the foolish blunder of arguing for a squishy balancing test in our post-argument roundtables with the Justice.

This preference for clear rules wasn’t arbitrary: It stemmed from a deeply held belief that determinacy and predictability are essential to a just legal order. The Justice laid this out in his great essay The Rule of Law as a Law of Rules, which in my admittedly biased view should be required reading for first-year law students. Squishy standards make it impossible for citizens to reliably predict the rules to which they will be held, and obscure and unknowable rules are hallmarks of bad systems of law. As he put it, inimitably, in United States v. Mead Corp. “th’ol’ ‘totality of the circumstances’ test” is “most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect).”

The Justice’s preference for clear rules over mushy standards shares an important feature with his approach to interpretation: judicial self-restraint. Textualism and originalism force a judge to renounce considerations that are not appropriate indicia of statutory or constitutional meaning—including those especially tempting policy considerations, which allow judges to actively shape the law based on their own conception of the good. (How many lawyers dream, Walter-Mitty-like, of being the hero in the spotlight rather than an unseen counselor in the wings?) The textualist judge, constrained as he or she is, is not free to play the heroic lawgiver, majestically dispensing justice to the benighted.

As the Justice put it in Hamdi, it is not the Court’s place in American government to “Make Everything Come Out Right,” but “merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.” The textualist and originalist judge is not the great lawgiver but a humble parser of texts adopted by others. Like Dr. Johnson’s lexicographer, the textualist judge is “a harmless drudge, that busies himself in tracing the original, and detailing the signification of words.” This may sound uninspiring, but it is in fact a great tribute to democracy. For it means that the people and their elected representatives, not unelected judges, are the protagonists in our national life.

A preference for clear rules similarly constrains the judge. For a mushy standard is an open door allowing the Court to sweep back in in the next case and arrange a just outcome according to its own sympathies. What is an “undue” burden? Whatever five justices say it is. “The Constitution says nothing about abortion,” by contrast, is a renunciation of the power to legislate one’s preference.

Justice Scalia was willing to close the door and leave it to the political branches to determine the just or optimal outcome. Not because he trusted the political process to do the right thing; he was far too learned in history, and too skeptical of human nature, to be sure of that. Rather, it was because in our system of representative government it is our job, the People’s job, to ensure that we govern ourselves by just laws.

This is the Justice Scalia known to those who served him. He was larger than life and, in many respects, the consummate showman. But as a jurist, he placed his faith in the people’s judgment above his own, humbly accepting the unheroic role the Constitution assigned him. He will be missed.