by Marcia Coyle
And, he added, the second most serious objection to originalism is that, “In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis . . . .” He meant that carried to its logical end, an originalist approach could result in different outcomes to such landmark decisions as Marbury v. Madison (establishing judicial review of laws) and Brown v. Board of Education (striking down school segregation). But originalism is more of a restraint on a judge’s preferences than the non-originalist approach of applying “fundamental values” underlying the Constitution to current times, he said. And it more often leads to a moderate instead of an extreme result. So originalism for Scalia is the “lesser evil.”
But then Scalia confessed that “in a crunch I may prove a faint-hearted originalist.” He could not imagine upholding a statute imposing flogging as a punishment even if the public’s original understanding of cruel and unusual punishment at the time the Eighth Amendment was ratified included flogging.
In his chambers that late summer afternoon in 2011, Scalia said he has “recanted” being a “faint-hearted originalist.” “I think I would vote to uphold it if there were a state law providing for notching of ears. I think I would say it’s a stupid idea but it’s not unconstitutional. You have to be principled, and I try to be. The only other thoroughgoing originalist is Clarence.” Indeed, Thomas does not “adulterate” his originalism with stare decisis (respect for precedents). He views stare decisis as no obstacle to achieving what, in his opinion, is the correct reading of the Constitution.
Some of Scalia’s fans question whether he has truly recanted. True believers in original public meaning originalism call him out for not joining originalist opinions by Thomas or, at the very least, for failing to explain why he did not join Thomas in those opinions. In some of those cases, Thomas’s originalism had led him to conclude that students have no First Amendment speech rights; that the establishment clause does not restrain the states from favoring particular religions; the commerce clause does not allow the Congress to regulate economic activity that substantially affects interstate commerce, such as the intrastate production of marijuana; the First Amendment protects corporations from laws requiring disclosure and reporting of campaign contributions; and that the Second Amendment applies to the states through the privileges and immunities clause, not the due process clause, of the Fourteenth Amendment.
Thomas has developed a coherent, if often unorthodox, body of constitutional interpretations. He has said he is quite comfortable expressing those views in dissents or concurrences that no other justice will join and generally will not respond to as well. And although he is admired by some for the purity and originality of his vision, his uncompromising positions and willingness to cast aside stare decisis tend to limit his influence within the Court.
“One way of dividing up the world of judges are the judges who care more about being right versus being judges who just want to win,” said a former Thomas clerk. “Some judges work very hard to get a majority—they want their views to prevail. If that means I have to dilute it a bit, I’m willing to do that. If you really care about getting a majority judgment, you behave in a certain way.
“Another person would say, ‘My views are my views and if there’s not a majority, that’s fine. I’m going to express them.’ Thomas is clearly in the second camp. He doesn’t mind winning, but I don’t think that’s what’s most important to him. He is playing a longer-term game. It has been said by folks across the spectrum that a dissent today can be a majority opinion tomorrow. I think he sees the world that way and he is ready to accept the consequences of his originalism.”
One committed originalist scholar, Randy Barnett of Georgetown University Law Center, questioned in a 2006 lecture whether Scalia was really an originalist based on an evaluation of Scalia’s decisions and public statements. “Whatever virtues he attributes to originalism, he leaves himself not one but three different routes by which to escape adhering to the original meaning of the text,” wrote Barnett. “These are more than enough to allow him, or any judge, to reach any result he wishes. Where originalism gives him the results he wants, he can embrace originalism. Where it does not, he can embrace precedent that will. Where friendly precedent is unavailing, he can assert the nonjusticiability of clauses that yield results to which he is opposed. And where all else fails, he can simply punt, perhaps citing the history of traditionally-accepted practices of which he approves.”2
Originalism is a subset of textualism, said Scalia. And a textualist, he explained, is someone who believes that the meaning of a statute is to be derived exclusively from the text enacted by Congress and signed by the president, or else re-passed over his veto. It is the sole source that the judge ought to be using in making his judgment.
Scalia’s most frequent sparring partner on and off the Court on how to interpret the Constitution and statutes has been Justice Stephen Breyer, appointed to the Court by President Bill Clinton in 1994. The two men could not be more different, and the difference is not just in judicial philosophies. On the bench, Scalia rarely indulges in complicated hypotheticals. Leaning forward as if ready to pounce on an unsuspecting lawyer, he directs quick and punchy questions and interjects comments that can be funny or cuttingly sarcastic. He has open disdain for Congress and the legislative history surrounding its enactment of laws.
On the other hand, Breyer, with arms and hands gesticulating, is the master of the lengthy, complex, sometimes humorous, hypothetical question. He often will wait until almost the end of a lawyer’s argument to summarize that argument, state his problems with it, and say to the lawyer, “Now tell me why I’m wrong.” Perhaps because of his early experience as a Senate committee counsel, he voices more faith in, or respect for, the legislative branch of government.
During the past decade, Scalia and Breyer have engaged together in a remarkable series of public appearances in which they discuss their contrasting approaches. As counterpoint to Scalia’s search for the original public meaning of constitutional provisions at issue in cases, Breyer emphasizes a pragmatic approach and has written two books explaining that approach and its importance. In his most recent book, Making Our Democracy Work, Breyer said modern pragmatic judges seeking to interpret an ambiguous text in the Constitution look to the text’s language, history, context, traditions, precedent, purposes, and consequences.
“But when faced with open-ended language and a difficult interpretive question, they rely heavily on purposes and related consequences,” he wrote.3 Breyer views the latter two tools as particularly important to public acceptance of the Supreme Court’s work which, in turn, requires a Constitution that works well for the public today. It will work well if regarded as having “unwavering values” that are applied flexibly to changing circumstances, he contends, and if courts consider the roles of the other government institutions and the relationships among them.
But as Scalia countered in one public debate with Breyer, “The problem is purposes and consequences involve subjective judgment. I’ve sat with three colleagues who believed the death penalty is unconstitutional. Nothing has changed. Yet the living constitutionalist could one day say, ‘We feel differently about it than we used to, therefore I am going to prescribe from the bench it is unconstitutional.’ If you want to change things, you don’t have to use the Constitution to do it. Use the legislature. The issue is whether the judge can say the living constitution has morphed and what used to be okay is bad.”
Breyer believes the originalist judge is more likely to impose his or her subjective views. History often fails to provide the answer to a legal question, and historians often disagree on the meaning of historical materials. And if history does point in one direction, should it be followed if the values and thinking at the time of the drafting of a provision conflict with today’s values and understanding? For example, racially segregated schools in the District of Columbia existed at the
time of the framing of the Fourteenth Amendment’s equal protection clause, he noted. The Court in Brown v. Board of Education in 1954 did not follow what the clause’s authors might have thought about segregated schools in the 1860s.
The pragmatic judge’s subjective views are constrained and the judge is held accountable, he counters Scalia, by transparency—writing out legally defensible reasoning in a publicly accessible way. “Emphasizing [purposes and consequences] is more likely to keep you in touch with the legislature which is more in touch with the people,” he said in one debate.
The approaches taken by Scalia of the wickedly incisive pen, on the right, and by Breyer of the step-by-step, written-for-the-masses pen, on the left, inevitably would collide in the District of Columbia gun case. And another justice, John Paul Stevens, also would attempt to meet Scalia on his own playing field.
The justices learn for the first time what their colleagues are thinking about a case during oral arguments in that case. No memos are exchanged beforehand; no secret meetings between two or more justices take place. It is a tradition intended to prevent lobbying and secret alliances. They formally announce their positions in a closed-door conference after each week’s arguments. The chief justice speaks first, summarizing the case and stating his view, and then the other justices take turns by seniority—most senior to junior—stating their views. No justice speaks twice until each justice has spoken once. Each justice is listening carefully and taking notes on the various views in the event he or she is assigned an opinion. The junior justice tallies the vote. Afterwards, they communicate about the case through memos and draft opinions.
The justices have voiced varying opinions about the value of oral arguments and how persuasive they may be, but most of them have had their minds changed or made up on occasion by the arguments of one side or the other.
As part of a series of interviews for The Scribes Journal of Legal Writing, Chief Justice Roberts noted, “Even when you’re tentatively leaning, you have issues that you want to raise that give the other side a chance to sway you. Some cases, you go in and you don’t have a clue. And you’re really looking forward to the argument because you want a little greater degree of certainty.” Justice John Paul Stevens explained that “most of the time, by the time the argument’s over I’m fairly well persuaded one way or the other. But as I said, I’ve changed my mind not only after argument but after conference and after starting to write an opinion. So there’s a lot of flexibility and variation from case to case.” And Justice Scalia offered, “To begin with, you should know that oral advocacy is important, that judges don’t often have their minds changed by oral advocacy, but very often have their minds made up. I often go into a case right on the knife’s edge, and persuasive counsel can persuade me that I ought to flip to this side rather than the other side.” But Justice Thomas said his view of a case is “almost never” changed by oral arguments, and his colleagues’ minds, he suggested, are changed “in 5 or 10% of the cases, maybe, and I’m being generous there.” Justice Anthony Kennedy confessed to loving oral arguments, and added, “And I think it’s cruelly short. We need that help, and I didn’t realize before I went on the bench how much the judges really want help from the advocate. It’s not pretend.”4
The only “pretend” part of the process are the moot (mock) courts that the lawyers who will argue the cases undergo to prepare for their actual arguments. Alan Gura, who was representing Dick Heller, did five moot court arguments in which conservative Second Amendment legal scholars, such as Stephen Halbrook, Don Kates, and Joseph Olson, and conservative and libertarian lawyers, such as Ted Cruz, Ed Meese, and Ilya Shapiro, tested him on every conceivable question he might encounter.
Gura and Neily were confident they would get five votes to win, and believed they might get even more than five. Two justices had more than a passing interest and familiarity with guns: Scalia, they knew, was an avid hunter. And Alito, as revealed by his wife at the time of his appointment to the Court, was a “great marksman—he can do double clays,” his wife proudly said.5
At the time the case was filed, Gura and Neily saw two wild cards: Sandra Day O’Connor and Anthony Kennedy. O’Connor would soon leave. “I don’t think there’s any question about the conventional wisdom that trading Justice O’Connor for Justice Alito was a good change for an individual right reading of the Second Amendment,” said Neily. “That just left Kennedy.”
“People are obsessed with Justice Kennedy and wonder how he’s going to vote in any particular case,” added Gura. “I had no particular reason to think he would be any more of a swing vote than anybody else in this case. I based that just on the fact he tends to be very open-minded to claims of individual rights. He is not a statist, just somebody who doesn’t mind enjoining unconstitutional laws.”
From their perspective, it was hard to imagine that a Supreme Court justice who thinks of himself as to the right of the divide on the Court would be the fifth vote to “neuter” the Second Amendment. “You don’t get on the Supreme Court if you’re apolitical. You just don’t because you don’t move in the circles that would result in you being appointed,” insisted Neily. “The idea somebody would want to be the fifth vote in what is going to be a landmark case and have as one of their legacies that they went against not only the political views of the party that nominated them but the majority of people in this country seemed unlikely to me. The other thing great about it too is they had so much cover. Some of the most well known luminaries of constitutional law had said if you take a frank look at this stuff, it’s pretty clear.”
And, he added, every Democratic candidate for president in 2008, with perhaps the exception of Dennis Kucinich, had voiced support of the individual right interpretation. “I don’t know how many of them were sincere, but they knew they had to say it.”
The District’s Walter Dellinger knew heading into the argument the decision would be very close. He did not think Kennedy’s vote was easy to predict. He also hoped the Court would be thinking about Congress’s authority to regulate for the District, which is a national security zone. “I honestly believe not a single person involved in adopting the Second Amendment would have remotely thought it would have limited what Congress could do in the ten-square-mile area set aside for the national government,” he said. “It’s not that D.C. residents don’t have the same rights set aside for everybody else—they do. But nobody when they come into the District, whether they live here or come from outside, possesses any more right to possess a gun than if they lived at Fort Bragg.” Dellinger soon would discover that no one on the Court was interested in a D.C.-only ruling.
Dellinger also kept coming back to United States v. Miller, the last time the Supreme Court had addressed the substance of the Second Amendment. The 1939 decision was the precedent on which all of the federal appellate courts had relied for the militia–collective rights view until the 2001 opinion by the Fifth Circuit in United States v. Emerson, which adopted the individual right interpretation.
Jack Miller and Frank Layton were Oklahoma bank robbers who were stopped by Oklahoma and Arkansas state police in 1938. They had with them an unregistered, double-barrel, 12-gauge sawed-off shotgun. They were arrested for violating the National Firearms Act of 1934. The trial court found that the act violated the Second Amendment. The United States appealed to the Supreme Court. Miller’s attorney never participated in the case. An eight-member Supreme Court reversed the trial court.
Although both gun rights and gun control advocates agree the Miller decision was poorly written, both claim support in it for their views. Gun rights groups argue the decision was limited to the type of weapon at issue—a sawed-off shotgun—because Justice James Clark McReynolds wrote: “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment gua
rantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
But gun control groups contend that McReynolds’s opinion supported the militia-based right because the justice also wrote: “With obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
In the Heller gun challenge, the District of Columbia federal appellate court concluded that Miller meant that the Second Amendment protects an individual right to possess and use weapons “of the kind in common use at the time,” including handguns. Dellinger was not convinced.
“There had been a campaign for decades in this sort of public Second Amendment debate to delegitimize Miller,” he said. “Everybody who advised me said it had been so successful I was just going to get into a lot of trouble by raising Miller. It seemed to me this issue was resolved in Miller and the Court was going to have to overrule Miller to find an individual right. I was very tempted to begin my argument by saying the issue in this case is whether United States v. Miller should be overruled.”
• • •
The Court had scheduled the argument for March 18, 2008, a Tuesday morning, at 10 am. The usual argument time—sixty minutes, with thirty minutes per side—had been lengthened to seventy-five minutes, including time allotted to Solicitor General Paul Clement for the government’s position. During the arguments, Chief Justice Roberts would extend the time an additional twenty-two minutes to accommodate the justices’ intense questioning.