Antonin Scalia

Justice Scalia and the Libertarian Legal Movement

Libertarians disagreed with Scalia on many issues, but they also have to give him credit.



Was Antonin Scalia a libertarian? The question seems laughable, right? After all, it's Anthony Kennedy who's at the heart of the Supreme Court's libertarian moment (such as it is), not that arch-conservative who called the ruling striking down the Defense of Marriage Act "legalistic argle-bargle."

And in truth, one can presume that the first Italian-American justice's personal views are about as socially conservative as any modern public official. But so what? There are plenty of religious libertarians, and policy issues like abortion and the death penalty split the liberty movement.

Ah, but Scalia, who died yesterday at the age of 79, based his judicial opinions on those conservative views, right? Well, with the possible glaring exception of Gonzales v. Raich—the 2005 medicinal-marijuana case in which he went with the Drug War over federalism—it's hard to point to such corruption. (Democratic partisans also invoke Bush v. Gore, but that case is so sui generis that I've come to appreciate the Court's instruction that nobody should cite it for any legal point ever.) Raich is no small case—it pushed the scales from my eyes about Nino, as NFIB v. Sebelius did regarding John Roberts—but that's not bad for a 30-year career, especially given the flag-burning and criminal-procedure cases where surely his policy preferences lay elsewhere.

Indeed, Scalia based his entire revival of originalism and textualism on the idea that judges are bound by the written text and aren't free either to impose their own views or to divine some mythical legislative intent. As Jonathan Adler put it, before Scalia, "justices had no reluctance to join an opinion suggesting that statutory text could illuminate congressional intent where the legislative history was inconclusive."

The point isn't that Justice Scalia's jurisprudence was libertarian—Kennedy votes with the Cato Institute's position more and Clarence Thomas is a more faithful originalist—but that his commitment to the rule of law, and to bringing the Court back to a more principled jurisprudence, is in itself a libertarian victory. Without Scalia, the same kind of attention would not be paid to the Constitution's text, structure, and history—especially by so-called liberal originalists.

Nor, for that matter, would the Federalist Society, the fusionist group of conservative and libertarian lawyers, be quite the force it is today. Prof. Antonin Scalia was the first faculty adviser of the University of Chicago's (co-founding) chapter, and Judge and then Justice Scalia continued to be a strong supporter. (As have been Justices Thomas and Samuel Alito, but not Chief Justice Roberts.)

Much as libertarians have disagreed with him on cases regarding unenumerated rights, from Troxel v. Granville to Obergefell v. Hodges—even to McDonald v. Chicago, where at oral argument he disparaged the Privileges or Immunities Clause and instead joined an opinion based in his long-hated substantive due process—libertarian legal eagles have to give Scalia credit. After all, without Scalia's having made peace with the New Deal, who would Richard Epstein have to argue against about the Constitution's protections for economic liberty?

Scalia forced everyone to raise their intellectual rigor. I wasn't reading legal opinions before he joined the Court in 1986 (I was precocious in fifth grade, but not that precocious), but in retrospect it's easy to see a step-change from the early 1980s to the early 1990s. It's no coincidence that every law student now reads plenty of Scalia's writings—majority, concurrence, and dissent—because, agree with him or not in any particular case, he grasps the nettle.

So what now? On so many issues of individual liberty—from the right to participate freely in election campaigns (Citizens United) to the right to bear arms (Heller), from preventing the federal government from commandeering state officials (Printz) to stopping it from forcing people to violate their religious beliefs willy-nilly (Hobby Lobby)—replacing Scalia with even a "moderate" progressive would mean the end. And many close criminal-law cases align along principled-vs.-pragmatic lines, so a centrist would be worse there than someone in the mold of Ruth Bader Ginsburg.

It's been nearly 80 years since a justice was nominated and confirmed during a presidential-election year, and 100 years since such a confirmation had a recorded vote. (Louis Brandeis was so controversial that the Senate Judiciary Committee had its first-ever public hearing on a high-court nomination.) In a decade when Barack Obama has won two elections and the Republicans have won seemingly everything else, the Senate is fully justified in not taking up any nomination until after a new president is inaugurated.

That, perhaps, is Scalia's final gift to libertarians: watching both parties struggle not only with Trumpets and Sandernistas, but also with this incredible development in an already bizarre campaign. I can see Nino sitting down with St. Peter over some pizza and chianti and chuckling over the whole predicament.

"If you believe in democracy," he would say, "you put it to the people." 

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

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  1. Wasn’t there something about an innocent man not due another trial, ’cause he used up all three challenges or some such?
    I seem to recall gagging on his decisions quite often while he’s been on the bench.

    1. Yeah, that was Scalia. He sarcastically mocked the mere idea that the guy may be innocent. Scalia was proved wrong; I’m pretty sure he never apologized not admitted his a mistake.

      He also believed putting to death an actually innocent person wasn’t a violation of due process as long as he got his day in court. One would think a complete fuck up of such a magnitude would violate that person’s due process; not, however, Scalia.

      1. I might have mixed up cases. Truth is, Scalia regularly mocked the idea that somebody could be wrongfully convicted and had a belief in the rightness of our judicial system to meet out justice.

      2. umm no, sorry, reaching the wrong verdict in a trial is *not* a violation of due process… It’s called following the process and reaching the wrong conclusion. It happens it will always happen as long as people are around. If we can make the process better great, but even with the best processes in the world it will still happen. Sometimes the evidence is against the innocent, sometimes people make mistakes, some people are just plain dumb. This is true of all things judicial, scientific, engineering, doesn’t matter.

        1. and sometimes the prosecutor knowingly and wilfully withholds exonerating evidence, skews the “landscape in closing arguments, eagerly accepts evidence from questionable sources…… and they call that “justice”, too…..

      3. (Rebuttal Pt. 1 – broken up into multiple parts since comments are limited to 1500 characters.)

        This is 100% wrong – and yet another slander against Scalia by unscrupulous anti-death penalty activists who could never get the better of his arguments.

        There are two death penalty cases at issue here that are each wrongly referenced: Henry Lee “Buddy” McCollum and Troy Anthony Davis.

        McCollum was indeed later exonerated from DNA evidence after being on death row, and consequently received a pardon from North Carolina’s governor. The problem is that (contrary to your false assertions) Scalia never mocked his claims of innocence or commented one way or the other on it.

        What he DID do is mock Justice Stevens’ notion that death by lethal injection is always, per se, cruel and unusual punishment, regardless of the crime that led up to it or the amount of evidence that proves guilt.

      4. Rebuttal Pt. 2

        Scalia’s quote:?

        “Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us–the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death by injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional–for example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that!”

        ?(Source: Callins v. Collins)

        McCollum was later exonerated as the man guilty of this heinous crime. But that does not change the objective fact that SOMEBODY did in fact commit the heinous crime of raping an 11-year-old and stuffing her panties down her throat.

      5. Rebuttal Pt. 3

        If the one who is actually guilty of the crime was ever caught and brought to justice, are you ready to argue that lethal injection would be cruel and unusual punishment? It was THAT argument that Scalia was (justifiably) mocking, not the notion of McCollum’s guilt or innocence, as that question was never put before the Supreme Court. It’s not the job of the Supreme Court to determine guilt or innocence of a defendant. That is the job for the trial court. It is only the job of appellate courts to determine constitutional violations, or other violations of procedure based in law.

        ??If DNA evidence conclusively pointed to the guilt of John Doe, and one hundred witnesses all testified that Doe was guilty of the murder and gang rape of an 11-year-old girl, and his crime had been caught on video for the world to see, Stevens would still be arguing that, due in part to the inconsistent way it is applied in other cases, lethal injection for Doe would be “cruel and unusual” and thus unconstitutional. It was THAT notion that Scalia rightfully mocked. ?

      6. Rebuttal Pt. 4

        Scalia’s only point here was simply that the punishment of lethal injection is not “cruel and unusual” when compared to the gang rape and murder of an 11-year-old. Do you disagree with this simple and straightforward notion? If so, then have the guts to say so explicitly, rather than hide behind the completely separate issue that innocent people are sometimes wrongly convicted at the trial court level, or the separate debate over what post-trial procedures should be in place to prevent injustices against those that are wrongly convicted.

        In arguing that McCollum should be spared from lethal injection, even Justice Stevens assumed at the time that McCollum was guilty. Stevens’ dissent said about McCollum (quoting directly): “He participated with three other young men in the rape and murder of an 11-year old girl. Each raped the child, and McCollum helped hold her down while another young man stuffed her panties down her throat with a stick.”

        Do you feel that we should publicly excoriate Stevens for slandering an innocent man just as you are doing with Scalia? I certainly don’t. The reason why I don’t is because, as with Scalia, Stevens wasn’t tasked with determining his actual guilt or innocence. When arguing the separate issue of whether a specific form of punishment is “cruel and unusual”, it is a natural requirement to assume for the sake of argument that a defendant is factually guilty of the crime he was charged with.

      7. Rebuttal Pt. 5

        This in turn brings us to the the second false slander against Scalia – the notion that “He also believed putting to death an actually innocent person wasn’t a violation of due process as long as he got his day in court.”

        This lie is in reference to the case of Troy Anthony Davis, who was found guilty of the murder of a police officer and executed after a 20 year delay involving multiple appeals to both state and federal courts. Davis was guilty, not “proven innocent”. The myriad of facts showing this, and why his claims of “innocence” were rejected by various state courts, federal courts, The Georgia Board of Pardons and Paroles, and Georgia’s Governor are far too long to be listed here. But if you wish to educate yourself, you can read just one of the federal courts’ summaries of the evidence and appeals here:?

      8. Rebuttal Pt. 6

        Now back to the main issue of twisting Scalia’s comments and taking them out of context.
        Scalia never said or even suggested that, if judges had God-like powers and could determine with absolute objective certainty that a person was innocent and falsely convicted, that the Constitution would still allow for such an innocent person to be executed. What he instead said is that once guilt was determined in a fair, lawful and Constitutional manner, and all of the defendant’s appeals to all of the state and federal appeals courts has been exhausted, that habeas courts were under no obligation to hold yet another hearing simply and purely because the defendant claims “innocence”. ??

        Scalia was commenting on the notion that the judicial process must have some sense of finality at some point – otherwise the death penalty (explicitly allowed for in the Constitution under the 5th Amendment) would never be able to be carried out. No matter how many appeals and court hearings, a defense attorney could always claim yet another snippet of evidence should be considered. If courts were required to hold hearings and delay executions every time mere claims were made without showing Constitutional or procedural violations, then Scalia rightly understood that this would effectively end the ability of courts to carry out lawfully rendered death-penalty judgements.?

      9. Rebuttal Pt. 7

        Don’t believe me? Then why do you suppose that Snopes is under the same “delusion” that I am???

        Rather than believe the comments of anti-Scalia partisans, or those who try to summarize his views, why not read Scalia’s comments directly and try to understand them? In his dissent below, please note his use of quotation marks around the words “actually” and “innocent”. He uses those quotes ironically to comment on the issue of legal proceedings – not the notion that he (or any judge) can look into the soul of a person and determine questions of guilt or innocence apart from what the presented evidence shows. ?

      10. Rebuttal Pt. 8

        Still not convinced? Then why on earth did Scalia join Justice Rehnquist’s opinion in Herrera v. Collins where he stated:??”This is not to say that our habeas jurisprudence casts a blind eye toward innocence. In a series of cases culminating with Sawyer v. Whitley, 505 U. S. 333 (1992), decided last Term, we have held that a petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. This rule, or fundamental miscarriage of justice exception, is grounded in the “equitable discretion” of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.”?

      11. Rebuttal Pt. 9

        The problem for courts is that they cannot KNOW that someone is innocent until AFTER they have a hearing to determine as much. The accused cannot prove as much without a hearing, and without a hearing or trial, there is no way to prove innocence. So the question becomes, how many hearings and trials should the system afford the accused? If they must postpone all proceedings of punishment each and every time the accused says, “I’m innocent” without any showing that the previous hearings and trials didn’t past Constitutional muster, then that effectively destroys the ability to carry out punishment altogether. Scalia’s comments are a perfectly rational argument against that scenario – one that is well grounded in both law and court precedent. That is very different than a fantasy scenario where a judge with ESP can look into the soul of a person and see objective innocence, and then judged based on if if he or she decides to let the accused go or not. ??

        The issue doesn’t revolve around if we should set genuinely innocent people free. Of course we should. Nobody disputes that – including Scalia. The real, actual issue that Scalia was addressing is: Under what situations and circumstances should the holding of an evidentiary hearing be mandatory? If the test is whenever a defendant claims “innocence” and nothing more, then our justice system would be thrown into chaos.

      12. Rebuttal Pt. 10

        STILL not convinced that Scalia has been slandered here???Then I guess you also think that Justice Earl Warren, the most often cited and influential “liberal” justice of the 20th Century also thinks that “innocent people should be executed” since he wrote in Townsend v. Sain: “[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. Also, the district judge is under no obligation to grant a hearing upon a frivolous or incredible allegation of newly discovered evidence.” ?

        I guess that Justices Kennedy and O’Connor (not to mention more “conservative” Justices like Rehnquist and Thomas) all think its fine to execute innocent people since they joined the Herrera decision.

        Your completely ignorant remarks against Scalia here only prove one thing: That press interpretations of court opinions are made in complete ignorance (much like what passes for “science” reporting), and that people make their opinions based on these false characterizations, rather than taking the time to read the original documents themselves. ?

      13. Rebuttal Pt. 11

        Final Note: Reason’s policy of limiting comments to 1500 characters makes intelligent debate unwieldy and nearly impossible.

        Apologies for having to break up this rebuttal into multiple posts.

  2. Don’t hang your hat on any justice, they will always disappoint you.

    1. That’s what I’m seeing. One or the other will, at times, wander ass-backwards into an opinion which advances freedom and limits government, but it’s most always a surprise.
      We’ll take what we can get, but presuming a justice has ‘libertarian leanings’ means you’re under the influence.

    1. Personally, I’m half-expecting Scalia to weigh in with his dissenting opinion

  3. The idea that “the Senate is fully justified in not taking up any nomination until after a new president is inaugurated” is laughable. Scalia himself, as an originalist, would have been hard pressed to find anything in the text of the Constitution that negates the duty of the Senate to abide by the Appointments Clause.

    1. eatapc|2.14.16 @ 11:25AM|#
      “The idea that “the Senate is fully justified in not taking up any nomination until after a new president is inaugurated” is laughable.”

      You got lost on the way to some brain-dead lefty site, correct? I mean, you’ve been peddling this sort of bullshit all morning and getting called on it.
      Fuck off, slaver. We’re tired of statist thugs

      1. Look Sevo, in the text it literally says “with the Advice and Consent of the Senate” which means that they have a duty to consent to whoever he nominates, duh.

        1. Yeah, but that’s only if they’re in a militia!

        2. That doesn’t mean rubber stamp. If they don’t consent they can reject. It doesn’t even say the Senate is limited to simple matters of qualification.

        3. not true sand you know it. Senaste are under no obligation to accept any nominee. THAT is part of the separatiion of powers our Founding Fathers (take THAT, San Diego) built in to our government. Otherwise the fed court system would be an extension of the executive.

    2. It doesn’t say when. The Senate has the power to hold off or deny as long it wishes.

      1. +1 McConnell can keep the Senate in legislative session as long as he wants. Until he chooses to open an executive session the nominee can’t be brought to the floor.

        McConnell and the Republicans will answer to the voters for the course of action they choose. An originalist would be just fine with the co-equal branch of Government using their authority and facing the voters over their decision.

      2. It requires their consent. It does not require their consent.

    3. They just have to not consent to any of the president’s choices.

      I can’t help but think of the ending of the movie version of “Advise and Consent”, too.

      1. The uproar over the Senate not rolling over for Obama is ridiculous. Have people forgotten about the shitshow that was the nomination of Robert Bork, (and Douglas Ginsburg after that)? The Dem controlled Senate had a blast for about four months in ’87, grilling Bork like he was a piece of flank steak. If it had been closer to Nov ’88, there’s not a doubt in my mind they’d have invoked the Thurmond Rule and blocked everything until after the election.

        Think Obama’d nominate a Kennedy anyway? Would you trust anyone he’d put up there?

        1. The Senate should “advice” and send over a list of acceptable candidates for Obama to choose from.

          Also, recall how Obama rolled the Senate in regards to Iran deal?

          Or how he ran the clock on Lois Lerner emails.

          I don’t think he deserves a fair shake since he didn’t give Congress one.

        2. not as far as I could throw the nominee, and I got a bad back and two gimpy shouldewrs.

  4. What are the odds our Constitutional-Scholar-in-Chief would nominate another candidate with experience in the criminal courtroom?

    1. Jeez, can you imagine if they actually nominated someone from the defense bar?

      “Rusty Hardin, come on down!”

  5. Sullum just posted and article two thread up which seems to define Scalia with ‘way more accuracy:
    He wondered why the police might use an incompetent dog in drug searches, for pete’s sake!

    1. He was too kind to accuse the dirty coppers of slamming the suspect with a deliberatly trained false-positive on command dog.

  6. Scalia himself, as an originalist, would have been hard pressed to find anything in the text of the Constitution that negates the duty of the Senate to abide by the Appointments Clause.

    That sounds nice, but to most people (especially our Progressive brothers and sisters), the Senate’s real responsibility is to dutifully rubber stamp whatever candidate the President’s exhaustive and utterly apolitical search apparatus excretes.

    1. Only if the President is a Democrat. If it’s a Republican then the Senate’s duty, in their eyes, is to oppose. Witness Schumer’s statement a year and a half before Bush (43) was to leave office that they should oppose any nominee.

  7. Why is it that someone dying always brings vile scum crawling out of the dark recesses of sub-humanity?

    1. Human nature?

    2. Only when they don’t have to worry about affecting the executor.

  8. “Democratic partisans also invoke Bush v. Gore, but that case is so sui generis that I’ve come to appreciate the Court’s instruction that nobody should cite it for any legal point ever.”

    In other words, it’s okay for five Republicans to get to choose who the next president of the United States should be. Got it.

    1. No, silly, that’s what voter fraud is for!

    2. Vanneman,

      2 Points:
      1) You mispelled your goddamn name *again*!

      2) The electoral college elects Presidents. The court didn’t elect Bush any more than you did.

    3. The next president, repub or dem would pick the
      next justice. Why do you think the repubs
      will win?

    4. That isn’t what they did. They simply said the rules set forth by the Florida Supreme Court were not a violation of the Constitution and sent it back to the Florida Supreme Court to correct. Gore, understanding that he wouldn’t get to cherry pick districts for recount and set the rules for what qualified as a vote or voter intent, realized he couldn’t win a state-wide recount.

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  10. The senate could “advise” by sending a list of acceptable nominees to the Pres. “Pick off this list and we will consent.”

    1. You know who would be on that list?

      1. Judge Ito?

      2. Roland Freisler?

      3. Hitler. It’s *always* Hitler.

      4. I was leaning towards Jim J Bullock. I really want circle to get the square.

        1. Forgot to include that “Mike Hihn” is also an acceptable response. Seeing a decision IN ALL CAPS would be hilarious.

      5. Sarah Pallin
        Paula Abdul
        Judge Judy

    2. Same process for the Fed chairman, except that the senate is involved in this one. …
      They could cite that as precedent…

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  12. Well, our government is certainly putting it to the people.

  13. Libertarians should be ONLY concerned with legal aspects.
    In disapproving disapproval they simultaneously create and violate a zany standard.
    Let individuals, groups, and societies think and express themselves as they wish–As long as they don’t infringe on other’s natural rights by force or fraud. Once legal policy is hammered out, all else is leisurely philosophical discussion.

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  18. Well I only learned of this development a few hours ago. The R’s control both houses, so there is no logical reason they should pay any attention to, or even remotely consider the idea of ANY Supreme Court nomination until after the election. JUST SAY NO.

  19. The dude also signed onto the “Ignorance of the law *is* an excuse – as long as you’re a cop” opinion, and only cared about “originalist intent” when it suits him. When he was judging a recently passed law with ambiguous text he had no issue ignoring what they said (both at the time the law was passed and signed and when the question cropped up) was the intent, he just ham-fisted his interpretation onto it anyway.

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