The Convervatism of Antonin Scalia Author(s): Richard A. Brisbin, Jr. Reviewed work(s): Source: Political Science Quarterly, Vol.

105, No. 1 (Spring, 1990), pp. 1-29 Published by: The Academy of Political Science Stable URL: http://www.jstor.org/stable/2151223 . Accessed: 12/11/2011 15:24
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

The Academy of Political Science is collaborating with JSTOR to digitize, preserve and extend access to Political Science Quarterly.

http://www.jstor.org

The Conservatism Antonin Scalia of

RICHARD A. BRISBIN, JR. During1981-1988 Reagan the administration consciously attempted to appoint federaljudges who agreedwith its policy agenda.The appointment of Antonin Scaliato the Courtof Appealsfor the Districtof Columbiaand his elevationto the Supreme Courtin August1986is the archetypical exampleof the 1 administration's judicialappointment practice.This articlewill examineScalia's and publicstatements, publications, judicialopinionsto the closeof the 1987term of the SupremeCourtto permitan evaluationof his politicaland constitutional values. Special attentionwill be devotedto identifyinghis place in the Reagan effort to insurea bench in tune with the conservative policy stanceand to indicating his place in modernconservative thought.
THE ALLEGIANCES OF A JUSTICE

Like a numberof Reaganadministration appointeesto the federalbench, Antonin Scaliataughtlawand servedin the executive branch.Duringthe Nixon and Fordadministrations servedas generalcounselin the Office of Telecommunihe cationsPolicyin the JusticeDepartment, chairman the Administrative of Conference of the UnitedStates,and assistantattorneygeneralin chargeof the Office of LegalCounsel.He held a positionwith the conservative AmericanEnterprise Institutefor Public Policy Research to (AEI) in 1977.Althoughhe returned the
I Sheldon Goldman, "Reagan'sSecond TermJudicial Appointments: The Battle at Midway," Judicature 70 (April-May 1987): 324-339; Jon Gottschall, "Reagan's Appointments to the U.S. Courts of Appeals: The Continuation of a Judicial Revolution," Judicature 70 (June-July 1986): 48-54; Debra Cassens Moss, "The Policy and Rhetoricof Ed Meese,"American Bar Association Journal 73 (1 February 1987): 64-69; Elder Witt, A Different Justice: Reagan and the Supreme Court (Washington, D.C.: CQ Press, 1986).

RICHARD A. BRISBIN, JR. is assistant professor of political science at West Virginia University. He is currently working on a book on dispute resolution processes with Susan Hunter.
Political Science Quarterly Volume 105 Number 1 1990 1

| POLITICAL

SCIENCE

QUARTERLY

TABLE 1 Published Opinionsof AntoninScalia for the Districtof ColumbiaCourtof Appeals

Topic Administrative law, including APA, FOIA, statutory powers of agencies and justiciability cases with agency party Foreign affairs, judicial powers abroad Exclusive power of Congress or president First Amendment issues Criminal procedure and due process Equal protection and civil rights statutes Other, including D.C. law, contracts, bankruptcy Total Number %

99 6 5 6 8 4 5 133

74.4 4.5 3.8 4.5 6.0 3.0 3.8 100.0

Universityof Chicago Law School in 1977,Scalia remainedthe editor of AEI's journal, Regulation,and a proponentof extensivederegulation.2 As a memberof the Districtof ColumbiaCourtof Appealsafterappointment by PresidentRonald Reaganin 1982,Scalia wrote 133 opinions that werepubAs lished in the FederalReporter.3 Table1 reveals,74.4 percentof the opinions statutesor the standingof pardealt with eitheragencypowersunderregulatory his ties to challengeagencyaction. The court en banc overruled decisionsthree and authorityin adpresidential congressional times.AlthoughScaliaaddressed law ministrative problemsin his manyopinions,priorto his SupremeCourtservice he neverwroteon manyaspectsof criminaldue process,school desegregaequalprotectionclaims,freedomof tion, stateactionproblems,abortion,"new" issues, clause,mostfederalism clause,the commerce religionandthe establishment and and most civil rights, bankruptcy, antitruststatutes. Upon appointmentto the SupremeCourt for the 1986term, Scalia began to writeand vote on a widerrangeof legal issues. Duringthe termhe emergedas an ally of justiceson the rightof the Court.Table2 containsa matrixof the interin agreements votingby the justiceson 152cases decidedwith signedopinion or by lengthyper curiamdecisionsby the Courtduringthe term.The matrixis conTo described John Sprague. identifybloc to by structedaccording the procedures voting within the Court, he applied a criterionthat measuresthe strengthof
For biographical information, see Almanac of the Federal Judiciary 2 (1985-1986): 14-15; Sidney Blumenthal, "A Well-Connected Conservative," Washington Post, 22 June 1986; Ruth Marcus and Susan Schmidt, "ScaliaTenacious after Staking out a Position," WashingtonPost, 22 June 1986;United States Senate, Committee on Judiciary, Hearings on the Confirmation of FederalJudges, Nomination of Antonin Scalia to the Court of Appeals, 97th Congress, 2nd sess., 4 August 1982, 90-92. 3 Of the opinions, there were fifteen dissents, seven concurrences, and seven "concurrenceand dissent in part" opinions. The figures on Scalia's opinion writing in Michael Patrick King, "Justice Antonin Scalia: The First Termin the Supreme Court," Rutgers Law Journal 20 (Fall 1988): 1, are in error.
2

ANTONIN

SCALIA

TABLE2 Supreme CourtInteragreement Percentages, 1986 Term

Justice Marshall Brennan Blackmun Stevens White Rehnquist Scalia O'Connor Powell Ma
-

Br 92.8 -

Bm 78.5 79.2 -

Sv 74.2 72.2 70.3 -

Wh 45.7 47.7 62.8 58.7 -

Rh 38.2 37.5 51.7 46.4 82.1 -

Sc 46.6 45.9 57.9 58.5 76.9 84.5 -

OC 46.4 47.0 57.3 53.3 72.0 82.1 76.9 -

Po 52.0 53.9 64.4 55.9 77.5 80.9 73.6 77.5

Court Cohesion = 63.3 percent. Sprague Criterion = 81.7 percent. Note: The figures indicate the percentage of votes in which a pair of justices vote in an identical direction.

agreement amongthe justices.4 The Spraguecriterion,whichcomparesthe peror centageof interagreement cohesionamongvariousgroupsof justicesincluded in the matrix,verifiesthe existenceof severalblocs, includingone composedof William Rehnquist Scalia(cohesion= 84.5percent). and Interestingly,five-justice a bloc of ByronWhite,Rehnquist, Scalia,Sandra and O'Connor, LewisPowell(cohesion = 77.9 percent),a four-justicebloc of White, Rehnquist,Scalia, and O'Connor and (cohesion= 79.1percent), three-justice blocsof Rehnquist, O'Connor, and Scalia(cohesion = 81.2percent)and White,Rehnquist, Scalia(coand hesion = 81.2 percent)barelyfailed to satisfy the Spraguecriteria. An interagreement matrixfor 148cases decidedby signedopinion or lengthy percuriamopinionfor the 1987termof the Court,presented Table3, indicates as that Scaliaformeda bloc withJusticeAnthonyKennedy satisfiesthe Sprague that criteria(cohesion = 90.4 percent).Blocs of Scaliawith Kennedy and Rehnquist (cohesion = 86.8 percent);Scalia with Rehnquist(cohesion = 86.3 percent); Scaliawith Kennedy White(cohesion = 85.8 percent); and Scaliawith Kennedy, Rehnquist,and O'Connor(cohesion = 85.2 percent); and Scaliawith Kennedy, Rehnquist,O'Connor,and White(cohesion = 84.2 percent)all barelyfailed to satisfy the Spraguecriteria.Again Scaliahad close associationsbut not intense loyaltyto the positions of the other justiceson the right of the Court. To permitexamination the influenceof Scaliaon the decisionsof the Court of duringthe term, Table4 reportsthe majorityparticipation ratesof the justices. The evidencefor the 1986termindicatesthat Scaliawasthirdin majorityparticipation, nearerthe centerof gravityoccupiedby Powelland Whitethan the other
4 John D. Sprague, Voting Patterns of the United States Supreme Court: Cases in Federalism, 1889-1959 (Indianapolis: Bobbs-Merrill Co., 1968), 21-50, 54.

1 POLITICAL

SCIENCE

QUARTERLY

TABLE3 Supreme CourtInteragreement Percentages, 1987 Term

Justice Brennan Marshall Blackmun Stevens White Kennedy Scalia Rehnquist O'Connor Br
-

Ma 95.9 -

Bm 86.2 85.6 -

Sv 79.9 79.5 75.9 -

Wh 70.3 67.1 73.3 75.9 -

Kn 68.5 65.8 71.2 72.2 86.1 -

Sc 63.7 61.6 69.2 70.3 80.9 90.4 -

Rh 62.1 61.6 70.5 72.4 81.5 83.6 86.3 -

OC 61.4 61.6 67.8 70.3 82.2 83.3 84.9 82.9

Court Cohesion = 75.1 percent. Sprague Criterion = 87.6 percent. Note: The figures indicate the percentage of votes in which a pair of justices vote in an identical direction.

TABLE4 Majority Participation Justices in Percentages Ranked by Majority by Participation in (numberof participations parentheses)
1986 Term Majority Participation 83.6 81.6 76.3 75.7 73.7 68.4 67.1 63.8 63.2 Number 152 (152) (151) (148) (149) (151) (151) (152) (146) (147) 1987 Term Majority Participation 91.8 89.1 83.7 83.7 82.9 81.6 81.0 78.8 76.9 Number 148 (73) (147) (147) (147) (146) (147) (147) (146) (147)

Justice Powell White Scalia Blackmun O'Connor Stevens Rehnquist Brennan Marshall

Justice Kennedy White Rehnquist Scalia Stevens Blackmun O'Connor Brennan Marshall

Reaganappointees,O'Connorand Rehnquist.5 During 1987Scaliawas tied for thirdin majority with Rehnquist, the participation trailing majorityparticipation ratesof Kennedyand White. Table5 presentsthe supportof the justicesfor the policiesof the Reaganadin ministration casesadjudged duringthe 1986and 1987terms.Thetableincludes
cases when the administrationwas a party to the case or participatedamicus curiae.

JusticesWhite,Rehnquist, Powell,O'Connor,and Scaliavoted for the adminisI The term is from Glendon Schubert, Quantitative Analysis of Judicial Behavior (Glencoe, Ill.: The Free Press, 1959), 120-121.

ANTONIN SCALIA

TABLE5
Votes in Cases with Reagan Administration as Party or Intervenor, Justices Ranked by Support for the Administration in Percentages (number of participations in parentheses)
1986 Term Justice White Rehnquist Powell O'Connor Court average Scalia Stevens Blackmun Brennan Marshall Support 81.0 78.0 74.6 74.6 72.9 71.9 57.6 50.9 40.7 40.7 (58) (59) (59) (59) (59) (57) (59) (57) (59) (59) Justice Scalia Rehnquist O'Connor Kennedy White Court average Blackmun Stevens Marshall Brennan 1987 Term Support 75.8 73.0 71.4 70.4 69.4 66.7 55.6 54.0 45.2 44.3 (62) (63) (63) (27) (62) (63) (63) (63) (62) (61)

trationbetween81.0percentand 71.9percentof the time duringthe 1986term; whilethe otherfourjusticesexhibited less supportfor the administration far (57.6 to percent 40.7percent). Thus,Scaliasupported administration appointed the that himto the Supreme Court,eventhoughthe administration slightlymoresupwon port from Whiteand Powell.But duringthe 1987term, Scalia provedto be the justicemostsupportive theadministration. of the Although fourReagan appointees or reappointees finishedthe term rankedas the top four supporters the adof ministration, Scaliaedgedthemout for most supportfor the administration. All togetherthe evidenceconfirmshis allegiance the policypositionsof the Reagan to presidency.
THE DEMOCRATIC VISION OF ANTONIN SCALIA

Fromhis votingrecordand from his opinionsfor the Courtof Appealsand the Scalia'sapSupreme Court,it is possibleto discerna politicalvision underlying proachto constitutional problems legalissuesaffectingpublicpolicy.His poand liticalvision,an ideaor understanding the bestsocietyandthe politicalinstituof tions that could promotesuch a society,is democratic.6 believesin popular He controlof publicpolicythroughrepresentative institutionsand in respectfor the majority's policychoices.Also, becauseScaliabelieves that governmental policies involve"prudential" judgments amongcompeting valuesbyleaders,his Constitution does not require with any specificvalue action in accordance governmental or theory.Thechoiceamongalternative choiceaboutwhat policiesis a pragmatic
6 The term political vision is used to describe a prescriptiveon the future because it avoids the narrow connotations of ideology or theory.

| POLITICAL SCIENCE QUARTERLY

is best for the community,and it is a choice best left to executiveand legislative officials.' legislatures, Skeptical aboutjudicialpolicymaking,Scaliatruststhatexecutives, will andexecutive policy agencies serveas expertbodiesimplementing majoritarian choices.Thus the core of his politicalvision is a proposition,a politicalposition valuedfor its own sake, holdingthat Americanconstitutionalpolitics can continue to exist only if capableand expertleaderscan define and implementgood public policy.Although his opinions indicatea confidencein the expertiseand and he discretionof administrators, also finds them capableof arbitrary capricious action.8Likewise,he believesthat the executiveand legislatorscan make is errantdecisions.But he seemsconvincedthat the wisdomof these individuals his usuallygreater thanthat of judgesand the generalpublic.Therefore, political thanparticipavisionsimplychoosesto emphasize representative leadership rather or choice as a core value of the tory,cooperative, populistmodes of democratic Constitution.
Judicial Power

Derivedfrom the centralpropositionof Scalia'sdemocratic vision area seriesof if standards that define how the Constitutionand statutesshouldbe interpreted his goal of capableleadershipof the people is to be achieved.One standardis that the Supreme Courtshouldavoidoverseeing alteringthe choicesof leaders or of In of of the otherbranches government. a case challenging procedures the the Agriculture Departmenthe wrotethat "Government mischiefwhose effects are widelydistributed morereadily is remedied throughthe politicalprocess,anddoes not call into play the distinctivefunctionof courtsas guardiansagainstthe opHe powersdepressionof the few by the many."9 believesthe idea of separated a mandsthat courtsareto usethe "passive or virtues," adhereto precedent, "tradiIn tional"role, and an undefinedmethodologyof "judicialcraftsmanship."10 a
Harvard Journal of Law and Public 7Antonin Scalia, "Morality,Pragmatism, and the Legal Order," Policy 9 (Winter 1986): 123-127. 8 Rainbow Navigation v. Dept. of the Navy, 783 F.2d 1072 (D.C. Cir. 1986); Citizens for Jazz on WRVR v. FCC, 775 F.2d 392 (D.C. Cir. 1985); Electrical Dist. No. I v. FERC, 774 F.2d 490 (D.C. Cir. 1985); Maryland People's Counsel v. FERC, 761 F.2d 768 (D.C. Cir. 1985); New England Coalition on Nuclear Pollution v. NRC, 724 F.2d 1127 (D.C. Cir. 1984); Drukker Communications v. NLRB, 700 F.2d 724 (D.C. Cir. 1983). 9 Community Nutrition Institute v. Block, 698 F.2d. 1239, 1256 (D.C. Cir. 1983) (Scalia J., conc. & dissenting). 10 The concept of passive virtues is defined in Alexander M. Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962), 111-198;but Scalia establishes its basis in separated powers more than Bickel, who bases it on judicial capabilities. See Antonin Scalia, "The Doctrine of Standing as an Essential Element of the Separation of Powers,"Suffolk University Law Review 17 (Winter 1983): 881-899. For further insight of the high value he places on established legal rules, see Antonin Scalia, "The Francis Boyer Lecture on Public Policy," The American Enterprise Institute for Public Policy Research, Washington, D.C., C-SPAN, 5 December 1989 (author's notes of the broadcast).

ANTONIN SCALIA |

TABLE6 Standing and JudicialRemedies Votes of Justices in Cases Involving Ranked in Refusal to GrantRemedies in Percentages in (numberof participations parentheses)
Both Terms 1986 Term Number Remedies 69.2 53.8 53.8 53.8 50.0 46.2 33.3 23.1 0.0 0.0 (13) (13) (13) (13) (12) (13) (12) (13) (13) (13) 1987 Term Number Remedies 66.7 63.0 63.0 59.3 55.6 51.9 51.9 51.9 50.0 48.1 (27) (27) (27) (27) (27) (27) (27) (27) (12) (27) Percentage Number Remedies 65.0 62.5 59.0 53.8 52.5 52.5 50.0 46.2 42.5 40.0 32.5 (40) (40) (39) (13) (40) (40) (12) (39) (40) (40.) (40)

Justice Rehnquist White Powell O'Connor Scalia Court average Blackmun Stevens Brennan Marshall

Justice O'Connor Rehnquist Scalia Marshall Court average White Blackmun Stevens Kennedy Brennan

Justice Rehnquist O'Connor Scalia Powell White Court average Kennedy Blackmun Stevens Marshall Brennan

Court of Appeals case he offered additional confirmation of separated powers as a check on judicial powers, stating that "Such a vision of judicial supremacy, not only in interpreting the Constitution but in controlling every aspect of executive actively bearing upon citizens' constitutional rights, does not comport with Scalia champions the doctrine our understanding of the separation of powers.""1 of standing as a way of restricting "courts to their traditional undemocratic role of protecting individuals and minorities against impositions of the majority" and to exclude "them from the even more undemocratic rule of prescribing how the other two branches should function in order to serve the interest of the majority itself."I2 Table6 contains information on cases raisingquestions of standingand the availability of judicial remedies from the 1986and 1987terms. In these cases the original plaintiff sought to mobilize the law to effect changes in public policy. Despite the small number of cases for both terms, Scalia voted for access for the challenger in 41.0 percent of the cases; he was more reluctant to open the courts to cases involving plaintiffs challenging existing legislative and executive policies than any of the justices except Rehnquist and O'Connor. Scalia'sopinions have applied a specific set of tactics to keep courts out of matters that he would assign to elected leaders. As a first tactic, he provided judicial relief to citizens only when an "injury in fact" was caused by other persons or governRamirez de Arellano v. Weinberger,724 F.2d 143, 156 (D.C. Cir. 1983). Scalia, "Doctrine of Standing," 894. (Emphasis in original.)

12

| POLITICAL SCIENCE QUARTERLY

ment."3 Consequently, arguedagainstjudicial relief for a churchand its ashe against sociatedpartiessubjectedto indirectgovernment intelligence-gathering, or agencyrulesthat did not aggrieve havean impacton the dailyaffairsof firms, againsthearingimproperly statedclaims,and againsthearinga case of indirect 14 to to responsibility a crime. He refused extendthe abilityof parties suegovernfor mentfor infringements civil rightsin a case seekingdamagesfor a formerserof whilehe was on activeduty. vicemanwho was given LSD duringan experiment He also refusedrelief to the servicemanunderthe FederalTortClaimsAct.1 to juarguments constrain Scalia,as a secondtactic,usedseparation-of-powers he dicialreliefof allegedharms.Relyingon a separated powersargument, denied a court the authorityto hirea privateattorneyto prosecutea contemptagainst task, becauseit was it. He viewedthe prosecution contemptto be an executive of not affordedto the courts by Congress.16Scalia held that a police officer, who searchwhile actingin "good faith"that his searchwas conducteda warrantless legal, had a qualified executiveimmunityfrom suits because of the objective in confrontinghim."7 Scalia also arguedthat reasonableness the circumstances it the independent authorityof Congresspermitted to restrictjudicialreviewof He certainspecificprovisionsof law."8 especiallyobjectedto judicialignorance 19 over of congressional court-created limiting and rules judicial jurisdiction disputes. interestgroupsto As a thirdtactic of passivity,he was cautiousin permitting challengegovernmental actionsand agencydecisions.For Scalia,grouplegalacwith court rules.20 narrowly conHe tion must be reasonable in accordance and Act FeesAwards of 1976to denyattorneyfees struedthe Civil RightsAttorney's of to a civil rightslitigantwho won a favorable interpretation law froma federal to fromthe court.21As a related a courtbutwho failedto go forward secure remedy means of controllingjudicial power,Scaliaconcededthat legislatorscan check
Ibid., 894-895. Compare to Maryland People's Counsel v. FERC, 760 F.2d 318 (D.C. Cir. 1985). United Presbyterian Church in the US.A. v. Reagan, 738 F.2d 455 (D.C. Cir. 1984); Transwestern Pipeline Co. v. FERC, 747 F.2d. 784 (D.C. Cir. 1984); American TruckingAssns. v. ICC, 747 F.2d 787 (D.C. Cir. 1984); Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983);Romero v. National Rifle Assn. of America, 749 F.2d 77 (D.C. Cir. 1984). 15 United States v. Stanley, 107 S.Ct. 3054 (1987); compare to Bivens v. Six Unknown NamedAgents, 403 U.S. 443 (1971). 16 Young ex rel. United States v. Vuitton et Fils, S.A., 107 S.Ct. 2124, 2141-2147 (1987) (Scalia, J., conc.); see also United States v. Providence Journal, 108 S.Ct. 1502, 1511 (Scalia, J., conc.). 17 Anderson v. Creighton, 107 S.Ct. 3034 (1987). 18 United States v. Fausto, 108 S.Ct. 396 (1988); K Mart Corp. v. Cartier, Inc. (I), 108 S.Ct. 950, 960-2 (1988) (Scalia, J., dissenting). 19 Houston v. Lack, 108 S.Ct. 2379, 2385-9 (1988) (Scalia, J., dissenting); Torresv. Oakland Scavenger Co., 108 S.Ct. 2405, 2409-10 (1988) (Scalia, J., conc.); Bowen v. Massachusetts, 108 S.Ct. 2722, 2742-51 (1988) (Scalia, J., dissenting). 20 National Black Media Coalition v. FCC, 760 F.2d 1297 (D.C. Cir. 1985); Centerfor Auto Safety v. NHTSA, 793 F.2d 1322, 1342-1345 (D.C. Cir. 1986) (Scalia, J., dissenting); Natural Resources Defense Council v. Thomas, 801 F.2d 457 (D.C. Cir. 1986). See also Richard Nagareda, "The Appellate Jurisprudenceof Justice Antonin Scalia,"Universityof Chicago Law Review 54 (Spring 1987):706-715. 21 Hewitt v. Helms, 107 S.Ct. 2672 (1987).
13 14

ANTONIN

SCALIA

| 9

of judicialpowerby curtailing judicialreview the statutory powersof administrative agencies.Consequently, suits againstgovernment variousinterestgroups by or citizensdependon Congress specifically establishing rightsor interests can that be subjectedto litigation.22 As a fourth tactic, Scalia reluctantly grantedpreenforcement relief to parties affectedby agencyrulesand regulations. Despiteprecedents allowingsuchrelief, he affordedit onlywhentherewasa strongpossibility irreparable of injury.23 Fifth, the of he respected traditional reluctance courtsto considerdisputesarisingoutsidethe UnitedStates,as in a suitby aliensallegingdamagesbecauseof American violationsof international in Nicaragua.24 dissentedwhen the Court of law He Appealsgavestanding a UnitedStatescitizenwhoseproperty beendamaged to had in duringAmericanmilitarymaneuvers Honduras.He deemedthe decisionto be an "unprecedented" extensionof judicialpowerbecauseof its "elegantagnosticism"in readinga statuteon such problems,its "incomprehensible of disregard traditional principles equitablediscretion," interference executive of with its poliand acts of state,and its impugnment of cies, an executiveagreement, executive the "integrity of and fairness" the courts of a friendlynation.25 As a sixth tacticof passivity,Scaliabannedjudicialintrusioninto the internal conflicts of the Congress.He wrotethat courtsshouldnot reviewcongressional of decisionson the qualifications its members, methodCongressuses to disthe tributeappropriations agencies,or member to to challenges the rulesof the House of Representatives.26 Seventh,he assertedcourt rulesto preventfrivoloussuits, suits on settledmattersundera sharperdoctrineof finality,moot issues,and acof tions that resultedin a "squandering judicial resources."27 to Scalia'suse of the passivevirtuesand his deference electedrepresentatives of does not prohibit courtsfromconsidering constitutional questions fundamental
22 Sharp v. Weinberger, 798 F.2d 145 (D.C. Cir. 1986);ASARCO v. FERC, 777 F.2d 764 (D.C. Cir. 1985); Gott v. Walters,756 F.2d 902 (D.C. Cir. 1985). Compare FAIC Securities v. US., 768 F.2d 352, 356-361 (D.C. Cir. 1985). Scalia also opposes private rights of action that allow private challenges of other private parties who fail to comply with agency rules; Thompson v. Thompson, 108 S.Ct. 513, 520-523 (1988) (Scalia, J., conc.). 23 On preenforcement review, see South Carolina Gas and Electric Co. v. ICC, 747 F.2d 1541 (D.C. Cir. 1984); Air New Zealand v. CAB, 726 F.2d 832 (D.C. Cir. 1984). 24 Sanchez-Espinosa v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985). 25 Ramirez de Arellano v. Weinberger, 747 F.2d 1500, 1555-1564 (D.C. Cir. 1984) (Scalia, J., dissenting). See also Asociacidn de Reclamantes v. United Mexican States, 735 F.2d 1517(D.C. Cir. 1984); Beattie v. US., 756 F.2d 91 (D.C. Cir. 1984) (Scalia, J., dissenting). 26 Morgan v. US., 801 F.2d 445 (D.C. Cir. 1986); International Union, UAW v. Donovan, 746 F.2d 855, 861-862 (D.C. Cir. 1984); Moore v. US. House of Representatives, 733 F.2d 946, 962-965 (D.C. Cir. 1984) (Scalia, J., conc.). See also National Juvenile Law Center v. Regnery, 738 F.2d 455 (D.C. Cir. 1984). 27 Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S.Ct. 1133, 1144-5 (1988) (Scalia, J., conc.); Honig v. Doe, 108 S.Ct. 592, 614 (1988) (Scalia, J., dissenting); Mathes v. Commissioner of Internal Revenue, 788 F.2d 33 (D.C. Cir. 1986);Dozier v. Ford Motor Co., 702 F.2d 1189(D.C. Cir. 1983); Trakas v. Quality Brands, 759 F.2d 185 (D.C. Cir. 1985) (Scalia, J., dissenting); Conafay by Conafay v. Wyeth Laboratories, 793 F.2d 1322, 1342-1345 (D.C. Cir. 1986) (Scalia, J., dissenting).

10 | POLITICAL SCIENCE QUARTERLY

values. For example, he supported judicial consideration of the constitutionality of the legislative veto because the constitutional text appeared to be violated.28 However, he believes that, "Toconvert the sometimes inescapable necessity of considering the validity of statutes into a continuing mission to do so; and then to convert standing into equitable discretion as though it makes no great difference, Review on constitutional grounds must is to toy with the separation of powers."29 be confined to "valid" claims, and it should exclude those "colorable" constitutional claims patched onto claims on other issues.30The agencies of the state thus are freed from close judicial and, indirectly,interest-groupscrutinythrough Scalia's narrow interpretation of the scope of judicial power. The "Political" Branches Besides a restrained judicial role in constitutional politics, Scalia has offered a second standardof constitutional governance:executives and legislatorsmust identify, define, and proclaim policies in the community interest, subject to public consent by electoral means. Experts must determine what is best for the public and then communicate their views to executive and legislative officials; these elected officials must educate the public about the expert's evaluation of the policy actions. The public should respond to the leader's positions, especially at election time, and support or reject the agenda set by experts and refined by elected leaders. The public thus serves as a control on official or state power rather than as a participant in policy choice. In his dissenting opinion in Morrison v. Olson, the special prosecutorcase, Scalia confirmed his belief in the value of policy direction by the executive. Although he critiqued the chief justice's opinion upholding the scheme established by Congress for the appointment and removal of special prosecutors to inquire into executive branch violations of the law, his opinion was also a polemic against any external interference in executive branch policy making. Scalia's opinion rested upon a legalistic definition of the relations among the branches of the federal government. He stated, "A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence is ungoverned by law."31In his opinion for the Court, he strongly objected to Rehnquist's use of a balancing test and by implication a pragmatictheory of the relationsbetween the branches.Scalia claimed the balancing test let the majority tailor the law to its own policy predilections.32 Besides calling for a legalized relationship between the branches, Scalia offered
28 Antonin Scalia, "The Legislative Veto: A False Remedy for System Overload," Regulation 3 (November-December 1979): 19-26. 29 Moore v. U.S. House of Representatives, 733 F.2d 946, 964 (D.C. Cir. 1984) (Scalia, J., conc.). 30 Websterv. Doe, 108 S.Ct. 2047, 2059-63 (1988) (Scalia, J., dissenting). (Emphasis in original.) 31 Morrison v. Olson, 108 S.Ct. 2597, 2640-1 (1988) (Scalia, J., dissenting). 32 Ibid., 2641 (Scalia, J., dissenting).

ANTONIN

SCALIA

I1

a definition the legalpowers the executive. definition of of The rested his reading on of the "plainmeaning" Article II of the Constitutionto be a grantof some of exclusivepowersto the executive.33 readthe Articleas a statementallocating He exclusive powersoverappointment removal executive and of officersto the president.Tobuttress contentionhe citedthe opinionof the Courtin Humphrey's this
Executor v. United States,34 which defined the executive removal powers of the

president the meaningof the term"executive and officers."35 also contended He thatthe powerto prosecute crimeswas"aquintessentially executive function" and that restrictions its operationby the specialprosecutor interfered on law with an exclusiveexecutive All powerin violationof the Constitution.36 of these powers, he argued,reducedpresidential authorityin an unconstitutional manner.37 Scaliaoften driftedinto dicta in his dissentingopinion in Morrison;however, thesediscussions clarifythe thrustof his visionof executive power.He fearedthat in the approval this law permitted of legislativeinterference the president's commandof the executive branch. Through interference imagined theConthis that he gresscould inducestaff disloyaltyto the executiveor decreasepopularsupport for executive that policyefforts.38 He also complained judgescouldinitiateunfair or unjustprosecutions executiveofficers.39 of Scaliawanteda presidency to free make policy and control the executivebranchwith as few checks and balances as possible.Indeed,his opinionmentioned only electionsandthe exclusive powers of the otherbranches properconstitutional as checksand balancesagainstexecutive policy makingand policy implementation powers.40 Scaliaalsohasindicated supportforexecutive his policyleadership expressing by a fundamental confidencein the expertise agencyrulemaking. wouldgrant of He the to agencies discretion formulate concise,comprehensive rules,becausehe fears thatbureaucratic policymakingbyadjudication produces policyin a disorganized, for incremental fashion.41His decisions the Courtof Appealsfrequently supported in suchagencydiscretion rulemaking.42 Scalia's opinionforthe Supreme first Court
33 34 35 36 37

Ibid., 2631-5 (Scalia, J., dissenting). Humphrey's Executor v. United States, 295 U.S. 602 (1935).

Morrisonv. Olson, 108 S.Ct.at 2627-37 (Scalia,J., dissenting).

Ibid., 2627-8 (Scalia, J., dissenting). Ibid., at 2628 (Scalia, J., dissenting). 38 Ibid., at 2630-1, 2640 (Scalia, J., dissenting). 39 Ibid., at 2638-40 (Scalia, J., dissenting). For a related objection to judicial interference in areas of exclusive executive power, see Websterv. Doe, 108 S.Ct. at 2059-60, 2063 (Scalia, J., dissenting). 40 Morrison v. Olson, 108 S.Ct. at 2628-9 (Scalia, J., dissenting). 41 Antonin Scalia, "Back to Basics: Making Law With Making Rules," Regulation 5 (July-August 1981): 25-26. 42 Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986);Aluminum Co. ofAmerica v. ICC,761 F.2d 746 (D.C. Cir. 1985); Atlanta Gas Light Co. v. FERC, 756 F.2d 191 (D.C. Cir. 1985); Association of Data Processing Service Organizations v. Bd. of Governors, Federal Reserve System, 745 F.2d 677 (D.C. Cir. 1984); Port Norris Express Co. v. ICC, 728 F.2d 543 (D.C. Cir. 1984); Kansas Cities v. FERC, 723 F.2d 82 (D.C. Cir. 1983); Sea-Land Service v. Dole, 723 F.2d 975 (D.C. Cir. 1983); City of Bedford v. FERC, 718 F.2d 1164 (D.C. Cir. 1983).

12

| POLITICAL SCIENCE

QUARTERLY

continuedthis recordas he uphelda readingof taxationlanguagein the Panama CanalTreaty.43 Scaliaalso affirmedagencyinterpretations the meaningof statof utes becauseof the agency's"expertknowledgeof the interpretation's practical
consequences."44

Scaliadesiredto minimizejudicialcontrolof agencyactivity.He madeit clear thatparties haveto exhaust administrative remedies unless agency arbitrarily the had and capriciously abusedits discretion.45He soughtto keepcourtsout of the consideration congressional of assignment dutiesand the expenditure fundsto of of agencies,"anarchetypical politicaltask."46 Courts,he argued,shouldact only to see if agencydiscretionis sanctionedby statutes.Theyshouldavoidinquiryinto the rationality congressional of action, the creationof additionalprocedures for agenciesto follow (hybridrulemaking), "hardlook"inquiryinto the wisdom or of administrative procedures and rules.4'He refusedto allow courts to inquire intopresidential direction agencies.48 of Althoughhe expressed someconcern about Office of Managementand Budget oversightof agency rulemaking underthe Reagan deregulation he program, statedthatthe executive shouldmake"vigorous use of the machinery government" controlthe contoursof policy making of to throughagencyrulemaking.49 Scalia'svoting recordwhile on the Courtof Appealswas moresupportive of agencyactionthananyothermemberof his court.50 Table7 reports votingduring the 1986and 1987Supreme Courttermsin caseson executive agenciesand issues withan administration position.Surprisingly, Scalia(67.4percent for pro-agency both terms)was not the justicemost supportive agencychoices,givingreason of to questionhis strongsupportfor agenciesin his writings. The reasonfor the modestsupportfor agencyclaimsduringthe 1986and 1987
O'Connorv. UnitedStates, 107 S.Ct.347 (1986). KMart Corp.v. Cartier, Inc., 108S.Ct.1811, 1837(1988)(Scalia,J., conc.& dissenting); also see NationalLaborRelations Boardv. United Food andCommercial Workers Union,Local23, 108S.Ct. 413, 426-427 (1987)(Scalia,J., conc.);Mississippi Power& Light Co. v. Mississippi rel. Moore, ex 108 S.Ct.2428, 2442-5 (1988)(Scalia,J., conc.). 4S Interstate Commerce Commission Brotherhood Locomotive v. of 107 Engineers, S.Ct.2360(1987). He also favorsrestrictions judicialreviewof agencydecisions;see "Remarks JusticeAntonin on of ScaliaBeforethe Fellows the American Foundation the NationalConference BarPresiof Bar and of dents,"New Orleans,La., 15 February 1987,8. 46 International Union, UAWv. Donovan,746 F.2d855, 862 (D.C.Cir. 1984). 47 AntoninScalia,"TWo Makea Right:The Judicialization Standardless Wrongs of Rulemaking," Regulation1 (July-August 1977):38-41;AntoninScalia,"TheRole of Judiciary Deregulation," in AntitrustLaw Journal55 (1986):193-195. 48 CenterforAuto Safety v. Peck, 751 F.2d 1336,1336(D.C.Cir. 1985).See also Scalia,"Role of the Judiciary Deregulation," in 197-198. 49Antonin Scalia,"Responsibilities Regulatory of AgenciesunderEnvironmental Laws," Houston LawReview (January 24 1987): 97-109; alsoScalia, and "Back Basics," to 26-27;Antonin Scalia, "RegulatoryReform-The GameHasChanged," Regulation (January-February 13-15; 5 1981): Antonin Scalia, "Reagulation-TheFirstYear," Regulation (January-February 6 1982):19-21. -1 DavidH. Willison,"Judicial Review Administrative of Decisions," American PoliticsQuarterly 14 (October1986):321,table 2.
43 44

ANTONIN

SCALIA

13

TABLE7 Votes of Justices in Cases InvolvingFederalAgencies Ranked by Supportof Agency in Percentages (numberof participationsin parentheses)
1986 Term Support Agency 85.0 80.0 80.0 75.0 75.0 65.0 65.0 63.0 60.0 55.0 (20) (20) (20) (20) (20) (20) (20) (20) (20) (20) 1987 Term Support Agency 70.4 69.2 69.2 66.7 66.7 66.7 66.7 63.0 59.3 57.7 (27) (26) (26) (27) (27) (27) (8) (27) (27) (26) Both Terms Support Agency 80.0 76.6 72.3 71.7 70.2 67.4 63.8 62.5 61.7 59.6 58.7 (26) (47) (47) (46) (47) (46) (47) (8) (47) (47) (46)

Justice O'Connor Rehnquist Powell White Court average Stevens Scalia Stevens Marshall Blackmun

Justice O'Connor White Scalia Rehnquist Court average Blackmun Kennedy Stevens Marshall Brennan

Justice Powell O'Connor Rehnquist White Court average Scalia Stevens Kennedy Blackmun Marshall Brennan

termsprobablywas his willingnessto criticizeagencyinterpretations statutes of whenthey ignoredthe plain meaningof the statute.He madethis clearin a concurringopinion chidingan agencyfor pushingthe languageof a statuteto extremesbecause of excessivejudicial deferenceto the agency.51 a concurring In opinionin anotheradministrative he refusedto deferto the agencyinterprecase tation of a statutewhenthe agencyreliedon the legislative historyof the statute ratherthan its plain meaning.52 Althoughhe has admittedthat politicalleadershipof agenciesdeserves respectfromthe courts,Scaliabelievesthatthe community good is also best servedby clearand concisecongressional policymaking.53 Thus, he was criticalof the so-callednewregulation the past two decades,beof causeCongressignoredprecisionand procedural uniformityin its statutorylanthe of guage.Thisloosenessof language abetted growth uncontrolled agencypower and made externaloversight the agencymoredifficult, for "to the extentthat of the choice of procedures left to the agenciesthemselves,to that same extent is the agenciesareleft to determine substantial a The aspectof theirown power."54 of definedby agencieson theirown thus prohibited easy an diversity procedures
51 National Labor Relations Board v. International Brotherhood of Electrical Workers,Local 340, 107 S.Ct. 2002, 2015-2017 (1987) (Scalia, J., conc.). 52 Immigration and Naturalization Service v. Cardoza Fonseca, 107 S.Ct. 1207, 1223-1225 (1987) (Scalia, J., conc.); Langley v. Federal Deposit Insurance Corp., 108 S.Ct. 396 (1987); United States v. Taylor, 108 S.Ct. 2413, 2423-4 (1988) (Scalia, J., conc.). 53 Antonin Scalia, "VermontYankee:The APA, the D.C. Circuit, and the Supreme Court," Supreme Court Review (1978): 386-387, 400-409. 54 Scalia, "Vermont Yankee,"407.

14

| POLITICAL SCIENCE QUARTERLY

comprehension the propriety agencyactionby the legislature, it threatof of and ened legislativepowerbecauseit introduceduncertainties statutorymeaning of resolvableonly in court.55 Scaliaalso arguedfor insuring carefulcongressional policymakingthroughthe application the nondelegation of doctrine.LikeChiefJusticeRehnquist, wants he to revitalize doctrine;however, does not just see the doctrineas a wayof this he decreasing powersgivenbureausby Congress.Instead,he viewsloose delegathe tion as a sourceof all sorts of discretionary bureaucratic choices that generate litigation allowjudicialintervention oversight executive and and of responsibilities.56 Despitehis emphasison political controlof agencyauthority,Scalia has not or in supporteddirectpublic participation interestrepresentation policy formaIn tion or implementation. reading Administrative the Procedure he narrowly Act, construedprovisionsallowingparticipation privateparties.He was reluctant by the to to interpret Freedom Information to openagencyrecords publicscruof Act tiny unless clear statutorylanguagepermittedit.5"He encouragedreadingthe Freedomof InformationAct as a meansof informingthe publicabout agency into actionrather thanas a wayof insuring personalized inquiries officialaction.58 He contends discoveries officialmisdeeds, unvirtuous that of action,and"themajor the checks exposesof recenttimes ... areprimarily productof institutionalized He the withinour systemof representative andbalances democracy."59 rejects thesis is executive do-it-yourself overthat the "firstline of defenseagainstan arbitrary the sight by the public, and its surrogate, press."60 to Scalia Besidesrestricting publicopportunities challengeagencyrulemaking, has often expressedhostilityto nontraditional forms of participation. is on He recordas opposingfreepublicaccessto electronic media.61He wrotea significant freedomof speechto demondissentto a Courtof Appealsdecisionthatextended varieties pluralistic of strators conductinga sleep-inin a publicpark.62 Therefore,
55Antonin Scalia, "Letterto Congressman John Dingell," 23 May 1974, quoted in Marshall Breger, "TheAPA: An AdministrativeConference Perspective,"VirginiaLaw Review 72 (March 1986):344-345; Scalia, "Two Wrongs," 38-41. See Nagareda, "Appellate Jurisprudence," 715-725, for a critique of this approach. 56 Scalia, "Vermont Yankee,"388-400; Antonin Scalia, "A Note on the Benzene Case," Regulation 4 (July-August 1980): 25-28. 5' Antonin Scalia, "The Freedom of Information Act Has No Clothes," Regulation 6 (March-April 1982): 14-19; U.S. Senate, Confirmation Hearing, 1982, 91; WashingtonPost v. Department of Health and Human Services, 795 F.2d 205 (D.C. Cir. 1986); Church of Scientology of California v. IRS, 792 F.2d 146, 153 (D.C. Cir. 1986), affd. 108 S.Ct. 271 (1987); Shaw v. FBI, 749 F.2d 58 (D.C. Cir. 1984); Ryan v. Bureau of Alcohol, Tobacco, and Firearms, 715 F.2d 664 (D.C. Cir. 1983); Arieff v. Department of the Navy, 712 F. 2d 1462 (D.C. Cir. 1983), 57. 58 United States Dept. of Justice v. Julian, 108 S.Ct. 1606, 1614-9 (1988) (Scalia, J., dissenting). 59 Scalia, "The Freedom of Information Act," 19. 60 Ibid., 19. 61 Antonin Scalia, "Don't Go Near the Water,"Federal Communications Bar Journal 25 (1972): 118-119. 62 Community for Creative Non-Violence v. Watt,703 F.2d 1586, 622-627 (D.C. Cir. 1983) (Scalia, J., dissenting).

ANTONIN SCALIA |

15

politicalconflict restricting policy makingby expertsand electedleadersdo not fit into his democraticvision.63
Market Economics

Thethirdstandard Scalia'sapproach constitutional of to interpretation a belief is in the moralizing effect of the market.DerivedfromAdam Smith,the principle holdsthatthe marketis not morallycorrupting, anti-egalitarian its resultsarenatural, and marketsteach people the virtuesof labor, thrift, and fair dealing." Markets to be trusted,andeconomiclibertyis to be protected are againstarbitrary governmental action. Table8 reportsthe votes of the justiceson one aspectof economicregulation andredistribution, FifthAmendment the takingsclausecasesof the 1986and 1987 terms.The numberof casesis verysmall,but Scaliawas the justiceleast supporIn tive of uncompensated or redistribution takingof property. an governmental opinionon the takingsclauseduringthe 1986term,Scaliasoughtto restrict public seizuresof privatepropertyas part of an effort to redistribute resources. reHe fused to allow Californiato conditionthe grantingof a permitfor rebuilding a houseon privatelandupon a grantto the publicof accessacrossprivateproperty to a publicbeach.The easementdemanded inbecausea property compensation terestwas taken by the state.The regulationof beach access was not deemeda valid exerciseof a state'spolice powerunlesscompensation offered.65 was Also, he supportedthe claimsof landlordsin a disputeovera rentcontrolordinance. Theordinance permitted officialsto adjustrentcontrolsand keeprentsbelow city a reasonable of returnfor buildingsin which"hardship" rate renters lived.Scalia arguedthe practiceviolatedthe takingsclausebecauseof the lack of procedural of on of uniformityin the establishment restriction incomeand the penalization selectedlandlordswithout compensation.66 Scaliahasallowed of "reasonable" stanHowever, regulation the market through dardsestablished constitutional Economicregulation acceptable is by lawmakers. to him whenit is the productof the operation representative of politics.Although the Constitution economiclibertyand althoughthere does not protectsubstantive is no widelyshared"constitutional ethos"favoringunregulated marketsand abintersolutefreedomin the use of privateproperty, Scaliabelievesthat legislative ventionin marketsshould be limitedto coerciverules.67 has not favoredthe He to market useof governmental and largess, grants, subsidies, otherawards influence

See Nagareda, "Appellate Jurisprudence," 715-720. Albert 0. Hirschman, "Rival Interpretations of Market Society," Journal of Economic Literature 20 (December 1982): 1463-1484, fully defines the moralizing concept. 65 Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987). 66 Pennell v. City of San Jose, 108 S.Ct. 849, 859-864 (1988) (Scalia, J., conc. & dissenting). 67 Antonin Scalia, "Economic Affairs as Human Affairs," Cato Journal 4 (Winter 1985): 707-709.
63 64

16

| POLITICAL SCIENCE QUARTERLY

TABLE8 Votes of the Justices in TakingClause Cases, 1986-87 Terms,Ranked by Approvalfor GovernmentalTakingin Numbersof Cases*
Justice Blackmun Stevens Brennan Marshall White Court average O'Connor Rehnquist Powell Scalia Kennedy * Number = 6. Favor Taking 5 5 4 4 3 3 2 2 1 1 0 Disapprove Taking 1 1 2 2 3 3 4 4 4 5 0 Non-Participating 0 0 0 0 0 0 0 0 1 0 1

of by behavior.68 agencysupervision marketsshouldbe restricted Consequently, discretion marketsupervision, in precisestatutes.Just as he fearsadministrative he remainsskepticalof the judicial abilityboth to define the economicliberty in of marketparticipants a "sensible" fashionand to craft economicpolicythat is fair and reasonable.69
Rights Issues

A fourthstandard constitutional is beliefthatthegoverninterpretation Scalia's of ment should supportthe majorityconsensuson what constitutesthe good life. the and processes, He believes thecommunity, that through legislative administrative can best define rights.For example,in a Court of Appeals decision,he upheld a Department Justiceclassification threeCanadianfilms as politicalpropaof of be that gandaand a statutoryrequirement the department informedof showings of the films.Because statuterequired reporting, the becausetherewasno priorthe and restraint violationof freedomof the pressprecedents, becauseit was desirable to informthe publicof the "scopeand effect of the agent'spropagandizing of could requireinformationon presentation the film. effort,"the government thus could promoteor disparage ideas for the communitygood if Government for approval, so doing.70Scalia's it hada statutory basis,a legalformof community
68 A Antonin Scalia, "Guadalajora: Case Study in Regulationby Munificence,"Regulation2 (MarchApril 1978): 23-29. 69 Scalia, "Economic Affairs," 706-707. 70 Block v. Meese, 793 F. 2d 1303, 1314-1318(D.C. Cir. 1986), affd. Meese v. Keene, 107 S.Ct. 1862 (1987). See also Nagareda, "Appellate Jurisprudence," 737-738.

ANTONIN SCALIA |

17

TABLE9 Votes of Justices in Cases InvolvingRights Issues, 1986-1987 Terms, Ranked by Supportfor Rights Claimin Percentages
(number of participations in parentheses)
Justice Brennan Marshall Blackmun Powell Stevens Kennedy Scalia White O'Connor Rehnquist Favor Free Expression 95.7 95.7 78.3 54.5 52.2 50.0 40.9 34.8 30.4 13.6 (23) (23) (23) (11) (23) (6) (22) (23) (23) (22) Justice Brennan Marshall Stevens Blackmun Kennedy Powell Scalia Whtie O'Connor Rehnquist Favor Rights of Defendent 90.8 88.3 67.5 59.7 33.3 27.1 23.4 22.4 22.1 14.3 (76) (77) (77) (77) (18) (48) (77) (76) (77) (77) Justice Brennan Marshall Blackmun Stevens White Powell O'Connor Kennedy Rehnquist Scalia Favor Claim of Equality 88.0 88.0 84.0 79.2 48.0 41.7 37.5 33.0 32.0 32.0 (25) (25) (25) (25) (25) (12) (24) (6) (25) (25)

commitmentto this conceptionof rightsappearsin his decisionson all rights issues-the First Amendment,criminaldue process,and equal protection. Table9 presentsthe voting behaviorof the justiceson rightsissuesduringthe of 1986and 1987terms.The number casesis small,eventhoughthe votesfor both indicationof the positionsof the justices. termsarecombinedto offer a stronger Nevertheless, is clear that the divisionwithinthe Court on FirstAmendment it of issueswas extreme.Scaliawas less supportive expressive rightsclaimsagainst the government than five of the justices. But his hostilityto these claims is not as extremeas that of White,O'Connor,and Rehnquist. In his FirstAmendment opinions,Scaliausuallywrotein supportof the regulaFor tion of expressive conductby the government. the Courtof Appeals,Scalia's dissentin Community for Creative Non-Violence v. Wattcontaineda refusalto extend speech-plusFirst Amendmentdoctrineto allow a sleep-inby protesters to in a Washington, D.C.park.Not only didScaliaindicate unwillingness apply an with this use of precedents a new formof protest,but he evokedunhappiness to he Therefore, rightsas an impedimentof the regulatory powerof government. upheldthe applicationof uniformtime, place,and mannerrulesestablishedby informedadministrators preventthe expressive to sleep-in.7' His opinions for the SupremeCourtcontinuedhis Court of Appealspattern include of preferring interests challenging to claims.Examples community parties' his dissentingopinion in the Connecticut electioncase.Forthe majority primary JusticeThurgoodMarshallheld that the state'sclosed primarylaw violatedthe
' Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622-7 (D.C. Cir. 1983) (Scalia, J., dissenting). The Supreme Court reversedthe D.C. Cir. and agreed with Scalia, Clark v. Community 733-737. for CreativeNon-Violence, 468 U.S. 288 (1984). See also Nagareda, "AppellateJurisprudence,"

18

| POLITICAL SCIENCE QUARTERLY

First Amendmentfreedomof associationof independent voters.Scalia, with a bite often found in his dissents,contendedthe rulingexceeded"thepermissable limit of FirstAmendmentrestrictions upon the state'sorderingof elections," exaggerated importance the associationalinterestat issue,"if indeedit [saw] the of one wherenone exists,"and extendedthe protectionof freedomof association to "fanciful" bonds and "casualcontacts."72 Scalia'srestricted interpretation of FirstAmendment protections appeared his dissentin Rankin v. McPherson. also in The majorityopinion by Marshallheld that a police administrator violatedthe expression rightsof a deputyconstableby firingthe officer afterthe officer suggesteda needto shoot President Reagan.He foundthatthe speechwason a public concernand that the expressive right of the officer outweighedthe need of the department controlit. Scaliaarguedthat the dismissalwas proper, to becausethe statementlacked political content, was not on a matterof public concern,and expressedapprovalof a seriouscrime.Also, even if the statementhad been on a matterof publicconcern,he believedthe expression could be regulated because its irresponsible nature threatened reputation esprit-de-corpsof the departthe and on ment.73 tailoredrestrictions speechduring Finally,Scalia defendednarrowly charitablesolicitationsif they preventedfraud.74 In freedomof the pressissuesScaliadissentedwhenthe majoritystruckdown an Arkansassales tax on selectedmagazinesas a violation of the FirstAmendment. He believedthe lack of a tax on some magazineswas a reasonablestate similarto aid to nonprofitgroupsand one withouta coersubsidyof expression 5 cive effect on the taxed magazines. His concurring opinion in a case involving the applicationof the Miller v. California obscenitytest containedlanguageindiMiller and eliminatethe prongof its test requiring cating a desireto reexamine judicial examinationof the "literary, artistic,political, or scientificvalue"of a He publication.76 did not indicatethe content of a new approach.77 Finally,in citizens he a Courtof Appealsdissenton libellaw,he indicated wouldallowprivate that violatenormsof truthtellingand that greaterabilityto curtailpublications of discussionof politicsin the interest the community.78 the denigrate enlightened of In thiscase andotherfreepresscases,he rejected judicialinference moreextensive pressliberties.79 clausedecisionwasa dissenting Scalia's only establishment opinionthat favored
Tashjianv. Republican Party of Connecticut, 107 S.Ct. 544, 559-560 (1986) (Scalia, J., dissenting). Rankin v. McPherson, 107 S.Ct. 2891, 2901-2906 (1987) (Scalia, J., dissenting). 74 Riley v. National Federation of the Blind of North Carolina, 108 S.Ct. 2667, 2681 (1988) (Scalia, J., conc.). ' Arkansas WritersProject v. Ragland, 107 S.Ct. 1722, 1730-1732 (1987) (Scalia, J., dissenting). 76 Miller v. California, 413 U.S. 15 (1973). Pope v. Illinois, 107 S.Ct. 1918, 1923 (1987) (Scalia, J., conc.). 78 Ollman v. Evans, 750 F.2d 970, 1038-1039 (D.C. Cir. 1984) (Scalia, J., dissenting). See also Liberty Lobby v. Anderson, 746 F.2d 1563 (D.C. Cir. 1984). 79 See In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325 (D.C. Cir. 1985); Nagareda, "Appellate Jurisprudence," 726-733.
72

ANTONIN SCALIA | 19

the constitutionality a creationscienceeducationlawenactedby the Louisiana of statelegislature. appliedthe establishment religion developed Lemon He of in test v. Kurtzman,80 did the majorityopinion of JusticeWilliamBrennan,but to as a differentconclusion.By reference the arguments counsel, Scalia found to of the act did not advancea religiousbelief and only accommodated theory of a whichthe statelegislature creation, determined somepotentialscientific had value. He also found the statutehad a secularpurposeby allowingstudentsto learnalternativetheoriesof creation.He furtherarguedthat the FirstAmendmentallowedthe government sometimesto advancereligionas it accommodated diverse valuesin the school curriculum.81 Table9 presents votingbehaviorof the justicesin cases involvingcriminal the due processclaimsandthe interpretation criminalstatutesduringthe 1986and of 1987terms.Scaliafavoredthe government overthe defendantin 76.6 percentof the cases.He joined Powell,O'Connor, White,andRehnquist thejusticesmost as in opposition to rightsclaims by criminaldefendants. Scaliahad not writtenmanycriminaldue processopinionswhileon the Court of Appeals,wherehe wasnot willingto enhancethe rightsof criminal defendants, to especiallywithregard psychiatric treatment defenses.82 and Indeed,in a dissent in a doublejeopardycase, he fearedfurtherrelieffor the defendantwouldcause the "erosion" "publicsafetyneeds."83 of Whenhe reachedthe Supreme Courthe some who envisionedhim to be a stronglypro-prosecution surprised justicewith an occasionalconfounding opinion.InArizona v. Hicks his opinionon the necessity for probablecause for the movementof equjipment permitthe inspection to of the serialnumber an itemin plainviewclarifiedthe meaningof the Coolidge of
v. New Hampshire ruling.84 It was criticized in dissents by O'Connor and Powell,

and joined by Rehnquist.Yet,he did allow the searchof the home of a probationerundera Wisconsin establishing law to search" grounds conducta "reasonable forevidence probation of violations. Scaliaruledthatprobable causewasnot necesin saryto searchin circumstances whichthe statehaddetermined therewere"special needs"for searchinga probationer's home to insurethe effectiveoperation of the probationsystem.85 a with a warrant Also, he permitted searchof premises even though the premiseshad earlierbeen searchedillegallyby police.86 In confrontationclause cases involvingthe admissionof the confessionsof Scaliawrotefor Rehnquist, codefendants, White, Blackmun, Powell,andO'Connor to support admissability a confessionconfirming codefendants' the of the criminal acts in a felony murderrule case whenthe circumstances the protected name of
Lemon v. Kurtzman, 403 U.S. 602 (1971). Edwards v. Aguillard, 107 S.Ct. 2573, 2591-2607 (1987) (Scalia, J., dissenting). 82 In re Sealed Case, 791 F.2d 179 (D.C. Cir. 1986); US. v. Cohen, 733 F.2d 138 (D.C. Cir. 1984); US. v. Byers, 740 F.2d 1104 (D.C. Cir. 1984). 83 US. v. Richardson, 702 F.2d 1079, 1094 (D.C. Cir. 1983) (Scalia, J., dissenting). 84Arizonav. Hicks, 107 S.Ct. 1149(1987). Compare Coolidge v. New Hampshire, 403 U.S. 443 (1971). 85 Griffin v. Wisconsin, 107 S.Ct. 3164 (1987). 86 Murray v. United States, 108 S.Ct. 2510 (1988).
80 81

20

| POLITICAL SCIENCE QUARTERLY

of He the confessingdefendant.87 permittedthe introduction out-of-courtidenclausecasehe wrote But tificationsas evidenceat trial.88 in anotherconfrontation for Brennan,Marshall,Blackmun,and Powellto insurethe defendantwouldbe confessionat theirjoint trial of protected againstthe introduction a codefendant's He if the confessionwasinadmissable againstthe codefendant.89 also prohibited the screening a childwitnessfroman allegedsexoffenderduringa trialbecause of of confrontationclause standards.90 In Grayv. Mississippi,Scaliadissentedfrom a majorityrulingthat permitted Yet, jurorsopposedto the death penaltyto be seatedin a capitalcase.91 he also arguedin dissentin anothercase that a statecould presenta victimimpactstatement as evidenceduringthe penaltyphase of a capitalcase. He contendedthat the exclusionof the statementhelpedthe jury determinethe degreeof harmas made and wellas the moralguilt of the defendant; the exclusionof the statement Finally,he dissented the penaltyphaseone-sidedand violativeof due process.92 from the Court'srefusalto impose the death penaltyon a juvenile,contending that the majorityhad failedto providean historicalor rationalbasisfor claiming the penaltyviolated a nationalconsensusagainstthe penalty.He believedthat to the statejury had givencarefulconsideration social and moralfactorsbefore imposingthe penalty.93 Courton equality the Table9 also presents votesof the justicesof the Supreme issuesduringthe 1986and 1987terms.Becausethe issueof equalitynow includes cases arisingunderfederaland state civil rightslaws as well as underthe Equal ProtectionClause,the tablecountsall voteson equalitymattersbeforethe Court. Despitethe broaddefinitionof equality,the numberof cases still remainssmall. Nevertheless, Scalia rankedlast among the justices, in a tie with Rehnquist,in for equalityclaims. support ScaliadisIn his only Supreme actionprograms, Courtopinionon affirmative
sented in Johnson v. TransportationAgency. Drawing on the tenor of the lan-

he guageand the themesof one of his law reviewarticles,94 launchedinto a disthe actionconcept.He argued the condemning entireaffirmative sentingopinion discrimination" ignoring by supportfor"state-enforced majority opinioncontinued v. and both the holdingof UnitedSteelworkers Weber95 the languageand intentions of Title VII. In concludinghis argumenthe lashed the majorityfor convertinga civil rightslaw into "a powerfulengineof racismand sexism"and for
Richardson v. Marsh, 107 S.Ct. 1702 (1987). U.S. v. Owens, 108 S.Ct. 838 (1988). 89 Cruz v. New York, 107 S.Ct. 1714 (1987). 90 Coy v. Iowa, 108 S.Ct. 2798 (1988). 91 Gray v. Mississippi, 107 S.Ct. 2045, 2059-2062 (1987) (Scalia, J., dissenting). 92 Booth v. Maryland, 107 S.Ct. 2529, 2541-2542 (1987) (Scalia, J., dissenting). 93 Thompson v. Oklahoma, 108 S.Ct. 2687, 2711-22 (1988) (Scalia, J., dissenting). 94 Antonin Scalia, "The Disease as the Cure," WashingtonUniversity Law Quarterly(Winter 1979): 147-157. 95 United Steelworkers of America v. Weber,443 IJ.S. 193 (1979).
87
88

ANTONIN SCALIA |

21

causingpersonslike Johnson,whose desireswereadversely affectedby the plan, to sufferinjustice"atthe handsof a Courtfond of thinkingitself the champion of the politicallyimpotent."96 Using a rationalbasis test, Scalia did agreewith the SupremeCourtthat discrimination privateclubscan be regulated statelaws.97 has been critical by He by of at least one judicialeffort to eliminateracialdiscrimination. the Courtof On Appeals,in Carterv. Duncan-Huggins dissenturgedthe court not to find a his violationof civil rightslawsbeforetheyhad acquired evidenceof intentionalracial discrimination.98 clearlywantedto keep the court out of the businessof He promotingequalityunless it had strongevidenceof a violation of statutes. The lessonof the rightsdecisionsis that Scaliadoes not wantrightsto threaten the traditions security the politicalorder,especially decisionsadvancing and of by politicalequality.He is unwillingto allow rightsto be used to induce diversity andfracture mislead or community sentiment. curtail To community discord, Scalia suggeststhat legislatures shouldact and courtsshouldmoderatetheirrolein the of to development legalstandards resolve The rightscontroversies. boundsof rights are to be set primarilyby the majorityof the people'srepresentatives.
Federalism

A finalstandard constitutional of is interpretation Scalia'sbeliefthatthe national the majorityshouldrespect choicesof leadersselectedby stateor local majorities. In his confirmationhearingshe made statementsin favorof an importantrole for the statesin constitutional Yet on government.99 in his only lengthystatement Scaliaindicatedthat the federalgovernment be "alegitimateand can federalism, usefulinstrument policy." also notedan "unfortunate" of He of tendency conservativesto see federalpoweras somethingto be resistedor undone.100 Table10reports votingof the Courtin casesinvolving the federalism issuesduring the 1986and 1987terms.Scaliarankedsixthamongthe tenjusticesin his support for the claimsof the federalgovernment overthe stategovernments. was not He as sympathetic the claimsof the statesin thesecasesas werethe otherappointees to of the Reaganadministration. to of Scalia,favorable some exercises federalpoweras indicatedby his Granite Rock dissent and his vote in South Dakota v. Dole,101 offer "solicitude" did of
96 Johnson v. Transportation Agency, Santa Clara County, 107 S.Ct. 1442, 1465-1476 (1987) (Scalia, J., dissenting). 9 New YorkClub Association, Inc. v. City of New York,108S.Ct. 2225, 2238 (1988)(Scalia, J., conc.). 98 Carter v. Duncan-Huggins, 727 F.2d 1225, 1244-1247 (D.C. Cir. 1984) (Scalia, J., dissenting). Compare to Toney v. Block, 705 F.2d 1364 (D.C. Cir. 1983). 9 U.S. Senate, Confirmation Hearing, 1982, 92. 100 Antonin Scalia, "The Two Faces of Federalism," Harvard Journal of Law and Public Policy 6 (special issue, 1982): 22. 101 California Coastal Commission v. Granite Rock Co., 107 S.Ct. 1419(1987) (Scalia, J., dissenting); South Dakota v. Dole, 107 S.Ct. 2793 (1987).

22 |

POLITICAL SCIENCE QUARTERLY

TABLE 10 Votes of the Justices InvolvingFederalismand PreemptionIssues, 1986-1987 in Terms,Ranked by Preference of FederalAuthority Percentages (numberof participationsin parentheses)
Justice White Stevens Marshall Powell Blackmun Scalia Brennan Kennedy Rehnquist O'Connor Support Federal Authority 76.6 72.3 66.0 65.6 65.2 63.8 61.7 60.0 55.3 55.3 (47) (47) (47) (32) (46) (47) (47) (8) (47) (47)

in stateprerogatives an opinionvalidatingstateincomeevaluationguidelinesap102 thus restson the federallyfundedwelfareprogram. His federalism plied under should but he does not thinkfederalsupremacy the conceptof federalsupremacy, of in an interpretation the commerce 103 Forexample, encroachon all statepowers. law and opinionarguedthat federal andthe comclause,his concurring dissenting on a did not prevent statefromimposingregulations the saleof stock merceclause whenthe statedid not discriminate it andthe merger corporations hadchartered of clarifica104 congressional interests. Scaliaalso wantedgreater againstout-of-state 105 tion of the federaland staterolesin commerceclausematters. He wrotea dis106 trucking. Finally, sentingopinion favoringstatelegislativetaxingof interstate judicially-created than federal the he hassupported applicationof statelawrather standardson forum selection when federalstatutesweresilent on venue.107
SCALIA AND APPROACHES TO CONSTITUTIONAL INTERPRETATION

is What kind of conservative Antonin Scalia? His selection satisfiedthe desire of that conservative administration wanted judgessupportive changes of an avowed
Lukhard v. Reed, 107 S.Ct. 1807 (1987); compare Scalia, "Two Faces," 19-22. South Carolina v. Baker, 108 S.Ct. 1355, 1369 (1988) (Scalia, J., conc.). He thus agrees with a narrow reading of the statements of the Court in FERC v. Mississippi, 456 U.S. 742 (1982) and with the dissenters in Garcia v. San Antonio Municipal Trans. Auth., 468 U.S. 528 (1985). Compare his opinion in Boyle v. United Technologies Corp., 108 S.Ct. 2510 (1988). 104 CTS Corp. v. Dynamics Corp. of America, 107 S.Ct. 1637, 1652-1653 (1987) (Scalia, J., conc. & dissenting). 105 BendixAutolite Corp. v. Midwesco Enterprises, Inc., 108S.Ct.2218,2223-4 (1988)(Scalia, J., conc.). 106 Tyler Pipe Industries v. Washington State Department of Revenue, 107 S.Ct. 2810, 2823-2829 (1987) (Scalia, J.); American TruckingAssociations v. Scheiner, 107 S.Ct. 2829, 2851-2852 (1987) (Scalia, J., dissenting). 107 Stewart Organization, Inc. v. Ricoh Corp., 108 S.Ct. 2239, 2245-9 (1988) (Scalia, J., dissenting).
102 103

ANTONIN

SCALIA

23

in administrative doctrineand that wasinclinedto avoidrightscontroversies law and the extensionof rightsopposingmajorityvalues.Thus, Scaliawas a conservativein the eyesof most politicalcommentators becauseof his votesandopinions that contain a repudiationof the politicalvision of Warren Court liberalism. in Originating JusticeHarlanStone'sCaroleneProductsfootnote,this vision or suggeststhat opportunistic factionalpoliticscan be prevented competition by The into amongdiversefactionsor interests. visionmatured EarlWarren's proposition that Americanconstitutionalpoliticscould continueto exist only if there 108 is cooperation amongequals. It is nowdefendedby JusticesBrennan Marand 109 shalland some legalscholars. This proposition,fardifferentfromScalia'scenof tralproposition aboutthe nature American constitutional government, assumes that politicalleadersshouldnot adoptpoliciesor practices failto treatpeople that withequaldignityand respector that prevent personsfromparticipating politin ical decision making.110 Scalia also differswith the standardsof constitutional interpretation supporting centralpropositionofferedby Warren the Courtliberalism.Standards rejectsincludethe beliefthat the Supreme he Courthas to foster and of should relations cooperative amongequals111 thatall institutions government be open to equal and activepublicparticipation oversight."12 rejectsthe and He Warren Courtliberals' skepticism markets.113 of he the Court Finally, rejects Warren liberals' beliefthatgovernment mustbe neutral definingrightsto choose modes in of political,moral,andreligious a expression. Scalia,in contrast,remains balancer of communityneeds for orderand politicalstabilityagainsta narrowly defined the Courtliberalbeliefthatrightsserve purposefor rights.Thushe rejects Warren

Brown v. Board of Education, 347 U.S. 483, 494 (1954);Reynolds v. Sims, 377 U.S. 533, 565 (1964). liberalism is an effort to provide a standard definition of the values of a group of like-minded judges and legal scholars. This theory has distinctive variants, like the natural rights liberalism of Justice William Douglas. It is distinctive from the historical positivism of Justice Hugo Black. See Martin Edelman, Democratic Theories and the Constitution (Albany: State University of New York Press, 1984), 121-208, 245-288. 110 Miranda v. Arizona, 384 U.S. 436, 458-466 (1966); Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), 205-213. 111 Ronald Dworkin, TakingRights Seriously (Cambridge, Mass.: Harvard University Press, 1978), 131-149; William J. Brennan, Jr., "The Fourteenth Amendment," address to Section on Individual Rights and Responsibilities, American Bar Association, New York University Law School, 8 August 1986, 2, 6-8, 12, 17; Lawrence H. Tribe, Constitutional Choices (Cambridge, Mass.: Harvard University Press, 1985), 9-20. 112 Dworkin, Matter of Principle, 211-213;Greene v. McElroy, 360 U.S. 474 (1959);Cafeteria Workers v. McElroy, 367 U.S. 886, 889-902 (1962) (Brennan, J., dissenting); Goldberg v. Kelly, 397 U.S. 254 (1970); Bishop v. Wood, 426 U.S. 341, 350-361 (1976) (Brennan, J., dissenting). 113 Dworkin, Matter of Principle, 206-208; Tribe,Constitutional Choices, 165-187;Ronald Dworkin, "Is Wealth a Value?"Journal of Legal Studies 9 (March 1980): 191-226. See Warren'sviews in Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964);NLRB v. Great Dane Trailers,388 U.S. 26 (1967); Brown Shoe Co. v. US., 370 U.S. 294 (1961); FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968); US. v. du Pont and Co., 351 U.S. 377, 414-426 (1956) (Warren, J., dissenting). See also Dandridge v. Williams, 397 U.S. 471 (1970) (Marshall, J., dissenting).
108

109 Warren Court

24

| POLITICAL SCIENCE QUARTERLY

as a trumpcardagainstthe effortsof leadersor a majorityto enforcea definition of the good life.1"4 Courtliberal,neitherarehis valuesin tune withsome If Scaliais not a Warren politicalcoalition.Scalia foundin the Reagan of of the otherbrands conservatism politicalproposirightwhoseprimary religious of is not a member the evangelical should rest on moral principlesidentical tion is that constitutionalgovernance by to those discernible a literalreadingof selectedbiblicalpassages.Scaliadoes naturalrightstheor not appearto be a devoteeof neo-Aristotelian neo-Thomist ories.Althoughtheseideas haveinfluencedscholarslike JudgeJohn T. Noonan, Jr. of the Ninth Circuit,theirlanguageis-absentin Scalia'swriting.He does not should rest on the moral give voice to the belief that constitutionalgovernance 115 moralphilosophy. AlthoughScalia of law principles natural or anyotherabstract of of hadcontactat AEI and the University Chicagowiththe proponents the economic analysisof law, little of their conceptsappearsin his writings.He makes shouldbe basedon the governance to no reference theirbelief that constitutional of maximization the wealthof individualcitizens.116Scalia, finally,gives no evidenceof supporting viewof AttorneyGeneralEdwinMeeseIII who defends the basedon the beliefthatconinterpretation a historical to approach constitutional of restson loyaltyto a literalreading the originalintention stitutionalgovernance of the Constitutionand its amendments.117
114 Ronald Dworkin, "Liberalism,"in Stuart Hampshire, ed., Public and Private Morality (Cambridge, England: Cambridge University Press, 1978), 127-136. See also Dworkin, TakingRights Seriously, 266-278; Cox v. Louisiana, 379 U.S. 536 (1965); Abington Township v. Schempp, 374 U.S. 203 (1963) (Brennan, J., conc.); Sherbert v. Verner,374 U.S. 398 (1963); Griswold v. Connecticut, 381 U.S. 479, 487-499 (1965) (Goldberg, J., conc.); Paul v. Davis, 424 U.S. 693, 714-735 (1976) (Brennan, J., dissenting). Nebraska Law Review 63 (1984): 115 John T. Noonan, Jr., "The Root and Branch of Roe v. Wade," 668-679, effectively summarizes his principles. See also John T. Noonan, Jr., The Antelope (Berkeley: University of California Press, 1977), 158-159; John T. Noonan, Jr., Persons and Masks of the Law (New York:Farrar,Straus, Giroux, 1976), 152-167, on the natural worth of persons. Compare to Scalia, "Morality, Pragmatism," 123-127. 116 Richard A. Posner, The Economics of Justice (Cambridge, Mass.: Harvard University Press, 1981), 48-115, best states the principle. See also Richard A. Posner, Economic Analysis of Law, 2d ed. (Boston: Little, Brown, 1977),3, 10, 13, 341-359; RichardA. Posner,"WealthMaximizationRevisited," Journal of Law, Ethics, and Public Policy 2 (Fall 1985): 85-105; Richard A. Posner, "Free Speech in an Economic Perspective,"Suffolk Law Review 20 (Spring 1986): 1-54; Richard A. Posner, "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution," Case Western ReserveLaw Review 37 (1986-7): 179;Frank H. Easterbrook,"CriminalProcedureas a MarketSystem," Journal of Legal Studies 12 (June 1983): 289-332; Frank H. Easterbrook, "Waysof Criticizing the Court," Harvard Law Review 95 (February 1981):802-832. Compare Scalia, "Morality,Pragmatism," 123-127; Scalia, "Economic Affairs," 706. Scalia's one use of economic analysis is an antitrust case, Business Electronic Corp. v. Sharp Electronics Corp., 108 S.Ct. 1515 (1988). 117 Antonin Scalia, "Originalism:The Lesser Evil," University of Cincinnati Law Review 57 (1989): 856-864. Compare Edwin Meese III, "The Battle for the Constitution,"Policy Review 35 (Winter 1986): 34-35; Edwin Meese III, "Our Constitution's Design," Marquette Law Review 70 (Spring 1987): 381; Edwin Meese III, "The Attorney General's View of the Supreme Court," Public Administration Review 45 (November 1985): 701; Edwin Meese III, "The Supreme Court of the United States," South

ANTONIN SCALIA 25 |

SCALIA AND THETRADITION FRANKFURTER, OF LANDIS,AND BICKEL

Scalia'spolitical ideas and standardsfor constitutionalinterpretation actually

modify and extend the propositions about American government propounded by Felix Frankfurter, his former law clerk Alexander Bickel, and his student, James Landis. These scholars believed, like Scalia does, in the central proposition that constitutional government must be directed by expert leaders. Frankfurter expounded on this view, stating: "Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-discipline for the achievement of its aims.""'8Landis applauded the development of a professional administrative process with the hope "that policies . . . could most adequately be developed by men bred to the facts" rather than the "casual office"9 seeker."' Bickel, fearful of "unvarnishedpopulism" and unrestrainedmajorities, desired leaders who induce political stability, for "masses of people do not make clear-cut, long-range decisions. They do not know enough about the issues, about

themselves,their needs and wishes, or about what those needs and wishes will appearto them to be two monthshence."1120 Landiscontendedthat the administrativeprocesswould "fill the need for expertness" that legislatures and courts 121 lacked. Thesemenbelieved experts that in and schooled science scientific managementshouldset the policyagendaalong a single,bestcourseand thenimplement policy with the discretionto adjustit to new problems.'22 Scalia'spolicy choices confirmand extendthis standard constitutionalinterpretation attempting of by to freethe president fromexternalconstraints in the specialprosecutor (as case), direction agencydiscretion, by defending disof by affirmingpresidential and the cretionof the agenciesin the interpretation statutes. of Frankfurter his associatesencouraged and in judicialrestraint constitutional interpretation. Frankfurter, For of checkingand balancing the otherbranches by the Courtwas to be confinedto rareinstancesof the breachof specificconstituTexasLaw Review 27 (Fall 1986): 455; and Edwin Meese III, "The Law of the Constitution," Tulane Law Review 61 (April 1987): 979. Besides not agreeing with Meese, Scalia is not an authoritarian centralist who would deny democratic participation to selected groups and use political institutions to enforce specific patterns of social behavior. Also, his deference to legislative economic policy making and his refusal to adopt a strong protective stance on both economic and personal rights sets him apart from libertarians. Compare Scalia, "Economic Affairs" to Edward H. Crane, "Judicial Activism and Economic Liberty,"Cato Policy Report 8 (November-December 1986): 2-3; and Steven Macedo, The New Right and the Constitution (Washington, D.C.: Cato Institute, 1986); and see the discussion in Richard A. Brisbin, Jr., "Conservation Jurisprudencein the Reagan Era,"Cumberland Law Review 19 (1988-1989): 497-537. 118 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J., conc.); see also Edelman, Democratic Theories, 74-5, 94, 114-20, for an elaboration of this idea. 119 James M. Landis, TheAdministrative Process (New Haven: Yale University Press, 1938), 154-155. 120 Alexander M. Bickel, The Morality of Consent (New Haven: Yale University Press, 1975), 16. 121 Landis, Administrative Process, 24, 30-31. 122 US. v. Morgan, 313 U.S. 409 (1941); Scripps Howard Radio v. FCC, 316 U.S. 4 (1942); SEC v. Chenery Corp., 318 U.S. 80 (1943); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 165-174 (1951) (Frankfurter, J., conc.).

26

| POLITICAL SCIENCE QUARTERLY

tionalrulesor clearstatutory and language123 to grievous misconduct offended that the sense of justice embodiedin constitutionalprovisions. He wrote,"Courts 124 are not representative bodies. They are not designedto be a good reflex of a democratic society.Theirjudgmentis best informed,and therefore most defendable, withinthe narrowlimits.Theiressentialqualityis detachment,foundedon independence."125 insurethe courtsdid not act in a fashionthat threatened To the policy choices of virtuousleaders,Frankfurter Bickelproposedthat courts and relyon the "passive virtues." "Reliance the most preciousinterests civilizafor of tion ... mustbe foundoutsideof theirvindication courtsof law.Onlya persisin tentpositivetranslation the faithof a freesocietyintotheconvictions habits of and andactionsof a communityis the ultimatereliance unabated against temptations to fetterthe humanspirit."126 Scaliais an ardentdefenderand elaborator the of judicial restraintand passivevirtuesdiscussedby Bickeland Frankfurter. For the scholarsof this traditionof constitutionalinterpretation, hardpolicy choicesare the provinceof electedleaders.127 did not excludeparticipation They fromtheirvisionof the constitutional system,butFrankfurter feared civiclethargy, demagoguery, corruptingfactionalinterests.128 and Becausethis traditionholds that the choices of expertsand leadersshouldnot be easilychallengedby groups or privateparties,courtsdo not needto open administrative actionsto participation or legal interventionby groupsand privateparties.129 Courts must refrain frompermitting interests questionexecutive to policypreferences.130 Scalia,in his
123 YoungstownSheet and Tube Ca v. Sawyer, 343 U.S. 579, 593-614 (1952) (Frankfurter,J., conc.); Terryv. Adams, 345 U.S. 461, 472-477 (1953); Gomillion v. Lightfoot, 364 U.S. 334, 346-348 (1960). 124 Colegrove v. Green, 328 U.S. 549, 556 (1946); see also Rochin v. California, 342 U.S. 165, 172-173 (1952). 125 Dennis v. US., 342 U.S. 494, 525 (1950) (Frankfurter, J., conc.). Compare West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 651-652 (1943) (Frankfurter,J., dissenting); Baker v. Carr, 369 U.S. 186, 280-297 (1962) (Frankfurter, J., dissenting); Alexander M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper and Row, 1970), 99, 175. 126 West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 670-671 (1943) (Frankfurter, J., dissenting). Compare Alexander M. Bickel, The Least Dangerous Branch (Indianapolis: BobbsMerrill Co., 1962), 111-198;Bickel, Idea of Progress, 81-88. See also Frankfurter's support for passivity in, Coleman v. Miller, 307 U.S. 433, 460-470 (1939) (opinion of Frankfurter, J.); Colegrove v. Green, 328 U.S. 549-556 (1946);Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 149-160 (1951) (Frankfurter, J., conc.); US. v. United Auto Workers,352 U.S. 567-593 (1957); Burns v. Ohio, 360 U.S. 252, 259-263 (1959) (Frankfurter, J., dissenting); Poe v. Ullman, 367 U.S. 497-509 (1961); Baker v. Carr, 369 U.S. 186, 266-277 (1962) (Frankfurter, J., dissenting); and the discussion in Gary T. Jacobsohn, Pragmatism, Statesmanship, and the Supreme Court (Ithaca, N.Y.:Cornell University Press, 1977), 120-121, 131-132. 127 See Bickel, Idea of Progress, 175-181; Landis, Administrative Process, 68-69. 128 Jacobsohn, Pragmatism, 144-148. See also SEC v. Chenery Corp., 318 U.S. 80, 91-94 (1943); Bickel, Idea of Progress, 157; Landis, Administrative Process, 75; Felix Frankfurter, The Public and Its Government (New Haven: Yale University Press, 1930), 157-163; Sanford V. Levinson, "The Democratic Faith of Felix Frankfurter,"Stanford Law Review 25 (1973): 438-441. 129 US. v. Morgan, 313 U.S. 409, 415-421 (1941); CBS v. U.S., 316 U.S. 407, 429-446 (1942) (Frankfurter, J., dissenting); Polish National Alliance v. NLRB, 322 U.S. 643-648 (1944). 130 Baker v. Carr, 369 U.S. 186, 297-302 (1962) (Frankfurter, J., dissenting).

ANTONIN SCALIA |

27

oppositionto inquiryinto executiveactions underthe Freedomof Information Act, his oppositionto privaterights of action, and his reluctance generalto in openthe courtsto claimsof individuals allegingharmsfrom agencypoliciesonly extendsto new topics the legal doctrinessupporting of this standard interpretation. His support of exclusive presidentialpowers and agency discretionin rulemakingalso frees leadersfor policy action. Intheirinterpretation economic of liberties, interpretative the standards Frankof furterand Landisencouraged competitivemarkets.Like Scalia they wantedto havethe policing of marketsby expertbodies to ensurethat unvirtuousforces did not corrupt moralteachingsof the marketplace. Also, theybelievedthat 131 the courtsshould deferto agencyjudgmentsabout marketpolicingand that courts should avoidinterfering with the marketto achieveredistributive policyends.132 In his constitutionalstandards the topic of federalism, on Frankfurter generally of assumed,as Scalia now does, the'supremacy nationalinstitutionsover state and local governments. a But, he retained belief in the benefitsof some independence in state policy making,just as Scalia does.133 Frankfurter assumed,as Scalianow does, that the good life shouldbe defined by the majoritythroughthe politicalprocess.The good life is the community's sense of what is virtuousactivity,and individualactionsshould not be allowed to threatenthe consensuson the good life.134Personalfreedomexists "whenit in is ingrained a people'shabits... "or whenit is partof the historyandcommon constitutionalstandardwas that experienceof a people.135 Thus, Frankfurter's rightswerenot a resourceto be used to permitdiversetheoriesof the good life to flourish.136Instead,they serveas an instrument controloccasionaldefects to in the decisionsof electedleaders.In this interpretative traditionthereis a recognition of the valueof free speech,but free speechthat threatens democratic the Thereis to be criminaldue process,but due process consensuscan be restricted.
131 Landis, Administrative Process, 154-155; on Frankfurter see Tigner v. Texas, 310 U.S. 141-194 (1940); East New YorkSavings Bank v. Hahn, 326 U.S. 230-235 (1945);American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 545-557 (1949) (Frankfurter, J., conc.). 132 Osborn v. Ozlin, 310 U.S. 53-67 (1940); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200 (1941);American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 542-557 (1949) (Frankfurter,J., conc.); NewarkFire Insurance Co. v. State Board, 307 U.S. 313, 323-324 (1939) (Frankfurter, J.); Wisconsin v. J.C. Penney Co., 311 U.S. 435, 445 (1940) contains Frankfurter's position. 133 New Yorkv. US., 326 U.S. 572 (1946), but note the exception at 582, used to justify the majority position of Court (Rehnquist, J.) in National League of Cities v. Usery, 426 U.S. 833 (1976) and the minority positions in Garcia v. SAMTA, 469 U.S. 528 (1985). Compare to Polish National Alliance v. NLRB, 322 U.S. 643, 649-651 (1944) (Frankfurter, J., dissenting) and Baker v. Carr, 369 U.S. 186, 284-285 (1962) (Frankfurter, J., dissenting). 134 Bickel, Morality of Consent, 24, 142; Jacobsohn, Pragmatism, 144-148. 135 Minersville School District v. Gobitis, 310 U.S. 586, 599 (1940). See also Dennis v. US., 341 U.S. 494, 555 (1951) (Frankfurter, J., conc.); and Bickel, Morality of Consent, 88. 136 West VirginiaState Bd. of Education v. Barnette, 319 U.S. 624, 667 (1943) (Frankfurter, J., dissenting); Milk WagonDrivers Union v. Meadowmoor Dairies, 312 U.S. 287, 293-299 (1949); see also Edelman, Democratic Theories, 93-114.

28

| POLITICAL SCIENCE QUARTERLY

should not threaten the majority's sense of what constitutes a secure society.137 The only times that rights can be used to change the effect of "habits and the feelings they engender. . . ." are when the enforcement of rights teaches the public to respect each other and the community's sense of right or when the enforcement preventsarbitraryactions detrimentalto constitutional governance.138 Thus, rights are to be used by courts to reestablish a community consensus rather than foster diverse values. By his opposition to most rights claims and especially to efforts to promote the equality of individuals, Scalia carries this tradition of interpretation toward a far greater defense of values of the majority. He gives greaterweight to majority values on topics like racial equal protection, where Frankfurtervoted for minorityclaimants. Scalia'sopinion in Block v. Meese permitsextensivemajority control of publications, his views on religion permit legislative majorities to control religious values in education, his criminal justice case voting record favors the community over the rights of those who may have threatenedorder in the community, and his equality decisions favor stability over changes in community social and economic relationships beneficial to minorities. The description of the constitutional values of Frankfurterand his students bears remarkable similarity to the values of Scalia in one additional way. All of these men share a commitment to law as the primary social value. As Bickel states the commitment: "Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or a plurality, but because it is the value of values. Law Scalia is the principal institution through which a society can assert its values."'139 agrees with this proposition, writing, ". . . I have never been able to isolate obligations of justice, except by defining them as those obligations that the law imAll poses."'140 of these men are legalists who hold "moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules."'141 Appointed to the Supreme Court because of his record of opinions and publications, his service for and connections to Republican administrations, and his personal character,Antonin Scalia is a typical product of the Reagan administra137 On speech, see Kovacs v. Cooper, 336 U.S. 77, 89-97 (1949) (Frankfurter, J., conc.); Dennis v. U.S., 341 U.S. 494, 546-556 (1951) (Frankfurter, J., conc.); Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 88-105; Wyman v. Updegraff, 344 U.S. 183 (1952) (Frankfurter,J., conc.). On criminal due process, see On Lee v. US., 343 U.S. 747, 760-762 (Frankfurter, J.); Adamson v. California, 332 U.S. 46, 59-68 (Frankfurter, J., conc.). 138 See Bickel, Morality of Consent, 110-111;Cooper v. Aaron, 358 U.S. 1, 24-26 (1950) (Frankfurter, J., conc.); McCollum v. Board of Education, 333 U.S. 203, 214-220 (1948); Harris v. US., 331 U.S. 145, 155-174 (1947)(Frankfurter,J., dissenting);Haley v. Ohio, 332 U.S. 596, 601-607 (1947)(Frankfurter, J.); McNabb v. US., 318 U.S. 322-347 (1943);and Niemotko v. Maryland, 340 U.S. 268, 275-289 (1951) (Frankfurter, J., conc.). 139 Bickel, Morality of Consent, 5. 140 Scalia, "Morality, Pragmatism, and the Legal Order," 125. 141 Judith N. Shklar, Legalism: An Essay on Law, Morals, and Politics (Cambridge, Mass.: Harvard University Press, 1964), 1.

ANTONIN SCALIA |

29

tion's judicial selection process. He is a justice who agrees with a majority of the Reagan administration'spolicy positions in constitutional and statutory litigation. Additionally, Scalia possesses a judicial philosophy and political vision that extend far beyond simple allegiance to a few policy positions. Akin to the tradition of constitutional interpretation of Felix Frankfurterand his students, it is a vision that limits the checking function of the Court in constitutional politics, enhances legislative and executive and agency power, and subjects rights to definition by the majority in control of the government. Finally, it is a majoritarian vision, a vision skeptical of Earl Warren'sfaith in a people governing themselves through a conflict encouraged by the existence of rights for minorities. In Scalia's democracy, leadership by the virtuous representativesof the majority and policy direction by the state remain the cardinal principles. Finally, as the bloc analysis has revealed, Scalia's constitutional vision is close to but not identical to the views of the other Reagan administration appointees to the Supreme Court. Despite a few surprise votes or opinions in favor of First Amendment rights claimants, criminal defendants, and minorities, Rehnquist, O'Connor, and Kennedy share Scalia's majoritarianconstitutional philosophy. As a group of relatively young justices, they should remain central figures in American constitutional development into the twenty-first century and a barrier for political forces seeking the reinvigoration of Warren Court liberalism.*

* Portions of this article were delivered at the 1987 and 1988 annual meetings of the Western Political Science Associaton. The author would like to thank Joseph Stewart, Jr. for his advice and Ken Knelly and Randy Moffett for research assistance.