A friend links me to this excellent article in The Weekly Standard by Terry Eastland on Supreme Court Justice Antonin Scalia. The essay does a fine job of not only explaining who Scalia is and what his judicial philosophy looks like but also of explaining what the alternatives to Scalia's philosophy are and why the differences matter. Anyone who wishes to understand more about the sort of person that President Bush said serves as his role model for what a Supreme Court Justice should be would do well to read Eastland's column in it's entirety. In case you can't, here are just a few excerpts:
More than a century ago, in the hands of the Supreme Court, the judicial power began to undergo a transformation that was well advanced by the time Scalia was in elementary school. In the 1986 book tracing the evolution of the judicial power, published just as Scalia joined the Supreme Court, political scientist Christopher Wolfe described the emergence of "judge-made law," which, against the hopes of the Framers, had become "another variant of legislative power."
The growth of judicial power is in an important sense a story of liberties taken with texts--specifically of the refusal by justices to follow the text of laws as understood at the time of their enactment and of the willingness by courts to "interpret" the law in light of various extratextual considerations. The kind of text in a given case--statutory or constitutional--did not matter. The result was the same: The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.
For Scalia, the right kind of judging is much different. It construes the text of the statute, he says, neither "strictly" nor "liberally" but "reasonably." The judge--the good judge--should ask what the statute meant to the legislators who enacted it and the people whom it obligates and also--as the Court did in Holy Trinity before it went off the rails--understand the statute in terms of the law or code of which it is a part. Dictionaries, including ones from the era in which the law was enacted, may prove helpful.
For Scalia, the starting point for constitutional interpretation is recognition that the Constitution, as he put it in the Tanner Lectures, is "an unusual text." It is the supreme law through which we govern ourselves and thus does not contain "nit-picking detail" (which detail is found in the mind-numbing U.S. Code). Its words and phrases should be given, says Scalia, "an expansive rather than narrow interpretation--though not an interpretation the text will not bear." Not "strict construction" but "reasonable construction" is the goal.
Here, too, Scalia is a textualist, since he starts with a legal text, the Constitution. And he is an "originalist," since he seeks the "original meaning" of the text. He does so not by pursuing the subjective intentions of individual framers, but by asking how the text was understood by the society that adopted it. Nor is Scalia unaware of the difficulties posed by originalism, for as he said in his Taft Lecture at the University of Cincinnati in 1988, "historical research is always difficult and sometimes inconclusive."
Scalia has a simple way of capturing what happened to constitutional interpretation. It came to serve the "Living Constitution," which Scalia defines as "a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society."
Maybe Scalia was right when he said in his Tanner Lectures that "the American people have been converted to belief in the Living Constitution." Still, with the change in the Court's composition over the past year, Scalia has more colleagues receptive to his interpretive approach than he did when he went to the Court two decades ago. With another "good judge" or two, the Court could start to turn his way.
That is a prospect fervently to be hoped for.
