Justice Scalia and the Proper Role of a Judge

With the passing of Justice Antonin Scalia, many Americans have begun to ask: What is the proper role of a judge?  For Justice Scalia, a judge should interpret law, not make it.  He held this view because he believed, as many of us still do, in American democracy.

In America, sovereignty resides with “We the People,” through our elected representatives and within constitutional constraints.  In other words, ours is a representative democracy, in which we vote for representatives who enact laws on our behalf; and the validity of those laws, and the process by which they are enacted, are subject to a written constitution.

Our Founders adopted a written constitution because they distrusted government.  Time and experience had taught them that government, unless checked, is prone to abuse power; it can and will, over time, encroach on our freedom.  So, they sought to create a “government of laws, not of men”—through which we would be governed not by the whims of our leaders, but by the words of our laws.  And they bequeathed to us constitutional constraints that would, in the words of Thomas Jefferson, serve as “chains” to “bind” the “mischief” of government.[1]

To that end, our Constitution wisely separates various powers among three branches of government, and between the federal government and the States.  The Founders knew all too well that the concentration of power places our liberty in peril.  The Constitution therefore vests the power to make laws in Congress, to enforce laws in the President, and to interpret laws in the federal courts.

And this is precisely why Justice Scalia believed so firmly that the role of a judge in our American democracy should be limited.  He believed that a judge should interpret a law based on its text and original meaning.  This method of interpretation is called textualism-originalism, and Justice Scalia was by far one of its greatest champions.

Textualism, as its name suggests, looks for the meaning of a law in the text of the law itself.  A key part of this process is originalism, which ascribes to that text the meaning it has borne since the time it was adopted.  In other words, it gives effect to the original meaning of the text, rather than a new meaning that may shift unpredictably, even radically, over time.

To understand just how radical the shift may be, consider an example from Justice Scalia himself.  He observed that, in the 18th century, the words “awful, artificial, and amusing” meant “awe-inspiring, highly artistic, and thought-provoking,” respectively, whereas in the 21st century those words have a very different, mostly negative connotation.[2]  Thus, to apply contemporary meaning to those words, as they were used centuries ago, would be to misapprehend their meaning entirely.

Textualism was Justice Scalia’s preferred method for judges to interpret law because, in our democracy, the law should govern—not the intent of a legislator, much less the preference of a judge.  And originalism is an essential ingredient in this democratic recipe because, when judges give laws a new meaning, the laws are changed; and changing law, like adopting law in the first place, is the function of the political branches of government, not the judicial branch.

Justice Scalia was especially critical of judges who say the law means whatever it ought to mean, ultimately based on their own policy preferences.  That is not how we do democracy, especially at the federal level where judges are appointed and not elected.  As Justice Scalia recognized, “[i]t is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is”;[3]  and “[t]his corrosion of democracy occurs even when law-revising judges are elected,” because “[t]he five or seven or nine members of a state supreme court, lawyers all, can hardly be considered a representative assembly.”[4]  Not surprisingly, Justice Scalia frowned on results-oriented judges who do not interpret law, but make it.  This is not judging; it is legislating.

And it is, frankly, unconstitutional.  The Constitution reserves “[a]ll” legislative powers to Congress, not the courts.[5]  At the federal level, Congress alone should make law, and courts should only interpret it.  This was the essence of Justice Scalia’s judicial philosophy, and it is a bedrock principle of American democracy.

To let judges proclaim that the law means what it ought to mean, rather than what it says, is not only unconstitutional but also unwise.  Justice Scalia challenged those who argued that the courts, especially the Supreme Court, should revise (that is, change) the Constitution to keep it up to date as a “living” document.  Why, as a matter of institutional competence, would we entrust the Supreme Court with keeping the Constitution up to date?

The Court reflects not our current society, but our society over time.  Consider that Justice Scalia, who was appointed by President Reagan in 1986, once sat on the Court with Justice William Brennan, who had been appointed by President Eisenhower in 1956.  Unelected Justices on the Court have lifetime tenure and some, like Justice Scalia, remain there until death.  Unlike Members of Congress and the President, they are not supposed to know what the current society wants and are not well positioned to guess.  Thus, for those who think the Constitution must be kept up to date, the Court is the least qualified branch to do it.

Justice Scalia believed not in a living Constitution, but an enduring one.  He recognized that a written constitution, like a written contract, does not naturally suggest changeability.  After all, we enter into a written contract to ensure the parties cannot later say we did not agree to a contract term, or that the term means something other than what it says.  Likewise, Justice Scalia argued, the “whole purpose [of our Constitution] is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away”; and a “society that adopts a bill of rights is skeptical that evolving standards of decency always mark progress, and that societies always mature, as opposed to rot.”[6]  Indeed, from the Roman Empire to the Weimar Republic, history is replete with societies that evolved for the worse, not the better.

Justice Scalia was a true patriot who defended, as best he could, American democracy in general and the U.S. Constitution in particular.  This is why, as a judge, he sought to interpret law, not make it.  In so doing, he inspired and molded generations of judges, lawyers, and scholars who will strive to follow in his footsteps.  And a grateful nation will be forever in his debt.