Antonin Scalia, Judicial Activist

How the conservative justice legislates from the bench.


With the Supreme Court back at the center of national attention, left and right alike point to Justice Antonin Scalia as the very model of the modern conservative jurist. President Bush has cited him, along with Clarence Thomas, as the sort of strict constructionist he'd like to see on the bench. Meanwhile, as the country debates whether John Roberts deserves to replace Sandra O'Connor on the Supreme Court, the left's greatest fear is that the president's nominee will turn out to be "another Scalia." For many liberals, the justice is a conservative crusader whose professed adherence to the Constitution is a cover for a social, religious, and political agenda of his own.

Commenting on Scalia's strongly worded dissent in Lawrence v. Texas (2003), which struck down state sodomy laws, New York Times columnist Maureen Dowd blasted him as a black-robed Archie Bunker, "misty over the era when military institutes did not have to accept women, when elite schools did not have to make special efforts with blacks, when a gay couple in their own bedroom could be clapped in irons, when women were packed off to Our Lady of Perpetual Abstinence Home for Unwed Mothers."

Contrary to the caricature, Scalia has delivered some surprisingly "liberal" opinions over the years. In 1989, three years into his tenure on the High Court, he ruled with the majority that flag burning was a constitutionally protected form of expression. (Centrist O'Connor and liberal John Paul Stevens were among the dissenters.) More recently, in Hamdi v. Rumsfeld (2004), Scalia joined Stevens in a dissent that went far beyond the majority opinion in arguing for drastic restrictions on executive power to detain terror suspects without due process. (His frequent ideological ally, Thomas, took the most pro-government position in a separate dissent.)

But Scalia's liberal critics have a point: His moral views have a habit of grafting themselves onto his constitutional philosophy. No one expects him to be a libertarian; he has stressed that his opposition to expanded federal power applies only to instances in which it is explicitly limited by the Constitution. But you might at least expect him to be oppose federal intervention within the parameters of his originalist vision. Or rather, you might have expected that until Gonzales v. Raich, this year's medical marijuana case.

Scalia voted to uphold the federal government's prerogative to go after medical consumers of homegrown pot, on the grounds that this activity supposedly affects interstate commerce. This ruling prompted Thomas to note in a caustic dissent, "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers."

You could easily conclude that Scalia is a hypocrite willing to cast his principles of limited government aside in order to further his anti-drug social agenda. Writing in The American Spectator, John Tabin offers a different theory. Tabin points to a 2001 case, Kyllo v. United States, in which Scalia wrote the majority opinion siding with a convicted marijuana grower who contended that drug agents had engaged in an illegal search by using a thermal imaging device to determine that the heat emanating from his home was consistent with high-intensity lamps typically used for indoor marijuana cultivation. Tabin believes Scalia's Raich opinion stems not from an animus against drugs but from excessive respect for judicial precedent, and the belief that it should not be overturned without an extremely compelling reason.

But even if Tabin is right about the reason for Scalia's position in Raich, it still makes him something of an opportunist, since he has been an outspoken critic of deference to precedent when it comes to another controversial issue: abortion. In his concurring opinion in Webster v. Reproductive Health Services (1989), Scalia was openly dismissive of O'Connor's assertion that reconsidering Roe would be counter to the "fundamental rule of judicial restraint." As Tabin points out in his American Spectator article, letting judges decide which circumstances are compelling enough to justify overturning precedent opens the door to precisely the kind of judicial subjectivism Scalia so often warns against: judges listening to their own ideological preferences rather than the law.

Scalia's own ideological preferences are well-known. He is a strong social conservative who, in a 2002 essay in First Things (adapted from a speech at a conference on religion in public life), deplored the "tendency of democracy to obscure the divine authority behind government," a trend he urged "people of faith" to resist. Scalia has repeatedly maintained that his personal philosophical beliefs play no part in his court rulings. Yet the texts of his opinions are steeped in his philosophy. A striking example can be found in Scalia's splenetic dissent in the 2005 case McCreary County v. ACLU, in which the majority ruled that a Ten Commandments display at a Kentucky courthouse was unconstitutional.

Scalia's dissent included a broad attack on "the Lemon test," which goes back to the 1971 precedent Lemon v. Kurtzman and holds that government action concerning religion must have a legitimate secular purpose, must not have the primary effect of either advancing or inhibiting religion, and must avoid "excessive entanglement" of religion and government. In his view, the requirement of government neutrality between religion and irreligion is a false and pernicious standard that has no constitutional basis.

Scalia clearly regards "governmental affirmation of the society's belief in God" as not only permissible but laudable; moreover, he stresses that such affirmation cannot remain entirely nondenominational, insofar as it endorses monotheism. "With respect to public acknowledgment of religious belief," Scalia wrote in McCreary County, "it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." (Of course, our nation's historical practices also permitted, for a long time, blatantly sectarian religious tests for state government offices.)

In making his case, Scalia not only cites the Founders rather selectively but also makes a strained argument that the government, even post-Lemon, has continued to give preferential treatment to religion. One of his examples is property tax exemptions for churches. But such exemptions are strictly nondenominational and are available to nontheistic religious organizations–as well as, in most cases, secular charitable and educational organizations.

Ostensibly, Scalia is discussing what he believes is the Constitution's original intent. Yet the tone of his dissent strongly suggests that he is also talking about his idea of a proper civic order–one in which those who do not adhere to traditional religions are, in an important sense, relegated to second-class status. The same is true of his Lawrence dissent. Thomas, too, dissented from the majority in that case, on the ground that in his view anti-sodomy laws were not unconstitutional; but he also noted that the Texas law was "uncommonly silly" and deserved to be repealed. Scalia, on the other hand, waxed eloquent at some length about the right of Americans to enforce "the moral opprobrium that has traditionally attached to homosexual conduct" for the purpose of "protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

Scalia is hardly the only justice whose personal values bleed into his rulings. He is, however, the one most critical of his colleagues for allowing their decisions to be dictated by ideological preferences. There is no reason to believe Scalia is consciously hypocritical on any issue. Yet time and again, his strict construction of the Constitution happens to coincide, almost precisely, with some ideological preference of his own.