Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Congressional research reportMar 18, 2016
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Justice Antonin Scalia: His Jurisprudence
and His Impact on the Court
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March 18, 2016
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R44419
Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Summary
On February 13, 2016, Justice Antonin Scalia passed away unexpectedly at the age of 79,
vacating a seat on the Supreme Court which he had held for nearly 30 years. Justice Scalia’s
lengthy tenure on the Court, coupled with his strongly held views on how constitutional and
statutory texts are to be interpreted, led him to have significant influence on the development of
the jurisprudence of various areas of law. He was also an active speaker and author outside the
Court, having, among other things, recently coauthored a book which sought to articulate
interpretative canons that would, in its authors’ view, “curb—even reverse—the tendency of
judges to imbue authoritative texts with their own policy preferences” and “provide greater
certainty in the law, and hence greater predictability and greater respect for the rule of law.” Like
his approaches to many legal issues in his opinions on the Court, Justice Scalia’s approach to
statutory interpretation in this book has prompted debate both over its desirability, as a normative
matter, and over the consistency with which Justice Scalia applied that approach.
This report discusses Justice Scalia’s jurisprudence on key areas of law, as well as how that
jurisprudence could be seen to have influenced the Court’s approach to these subject matters. It
begins with his views on two cross-cutting issues—the role of the judiciary and statutory
interpretation—which highlight his well-known views about originalism, textualism, the
importance of bright-line rules for judges to apply, and the proper role of the courts within the
system of government established by the U.S. Constitution. It then addresses Justice Scalia’s
jurisprudence on fourteen separate areas of law, which are arranged in alphabetical order from
“administrative law” to “takings,” and were specifically selected as key areas of law where
Justice Scalia’s absence from the Court could result in a change in its jurisprudence. The report
concludes with an Appendix that lists the Supreme Court cases from the October 2010 term
through the October 2015 term in which Justice Scalia was part of a bare five-member majority,
indicating the legal issues where Justice Scalia’s absence from the Court could result in a shift in
the Court’s jurisprudence. A separate report is being prepared to address the opinions of Merrick
Garland, currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia
Circuit and the President’s nominee to fill the seat vacated by Justice Scalia. The two reports,
taken together, may assist Members of Congress and their staff in assessing the impact that
replacement of Justice Scalia might have upon the High Court’s rulings.
Other CRS reports address the procedural issues that the vacating of Justice Scalia’s seat poses
for the Court, as well as the processes for nominating and confirming Supreme Court Justices.
See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an EightMember Supreme Court, by (name redacted)
; CRS Report R44235, Supreme Court Appointment
Process: President’s Selection of a Nominee, by (name redacted) ; CRS Report R44236,
Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by
(name redacted) ; and CRS Report R44234, Supreme Court Appointment Process: Senate
Debate and Confirmation Vote, by (name redacted) .
Congressional Research Service
Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Contents
Role of the Judiciary........................................................................................................................ 2
Statutory Interpretation.................................................................................................................... 4
Administrative Law ......................................................................................................................... 7
Capital Punishment........................................................................................................................ 10
Civil Liability ................................................................................................................................ 12
Civil Rights.................................................................................................................................... 15
Criminal Law and Procedure ......................................................................................................... 16
Environmental Law ....................................................................................................................... 19
Federalism ..................................................................................................................................... 22
Freedom of Religion ...................................................................................................................... 24
Freedom of Speech ........................................................................................................................ 26
International and Foreign Law ...................................................................................................... 30
Right to Bear Arms ........................................................................................................................ 32
Separation of Powers ..................................................................................................................... 34
Substantive Due Process................................................................................................................ 37
Takings .......................................................................................................................................... 39
Tables
Table A-1. Cases Since the October 2010 Term Where Justice Scalia Was Part of a Bare
Five-Member Majority ............................................................................................................... 42
Appendixes
Appendix. Justice Scalia as a Swing Vote ..................................................................................... 42
Contacts
Author Contact Information .......................................................................................................... 46
Congressional Research Service
Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
n February 13, 2016, Justice Antonin Scalia passed away unexpectedly at the age of
79, vacating a seat on the Supreme Court which he had held for nearly 30 years.1
Justice Scalia’s lengthy tenure on the Court,2 coupled with his strongly held views on
how constitutional and statutory texts are to be interpreted,3 led him to have significant
influence on the development of the jurisprudence in various areas of law. He also was
an active speaker and author outside the Court, having, among other things, recently coauthored a
book which sought to articulate interpretative canons that would, in its authors’ view, “curb—
even reverse—the tendency of judges to imbue authoritative texts with their own policy
preferences” and “provide greater certainty in the law, and hence greater predictability and greater
respect for the rule of law.”4 Like his approaches to many legal issues in his opinions, Justice
Scalia’s approach to statutory interpretation in this book has prompted debate both over its
desirability, as a normative matter, and over the consistency with which Justice Scalia applied that
approach, among other things.5
O
This report discusses Justice Scalia’s jurisprudence on key areas of law, as well as how that
jurisprudence could be seen to have influenced the Court’s approach to these subject matters. It
begins with his views on two cross-cutting issues—the role of the judiciary and statutory
interpretation—which highlight his well-known views about originalism, textualism, the
importance of bright-line rules for judges to apply, and the proper role of the courts within the
system of government established by the U.S. Constitution. It then addresses Justice Scalia’s
jurisprudence on fourteen separate areas of law, which are arranged in alphabetical order from
“administrative law” to “takings,” and were specifically selected as key areas of law where
Justice Scalia’s absence from the Court could result in a change in its jurisprudence. The report
concludes with an Appendix that lists the Supreme Court cases from the October 2010 term
through the October 2015 term—the time period since the last vacancy on the Court—in which
Justice Scalia was part of a bare five-member majority, indicating the legal issues where Justice
Scalia’s absence from the Court could result in a shift in the Court’s jurisprudence. A separate
report, in preparation, is to address the opinions of Merrick Garland, currently the Chief Judge of
the U.S. Court of Appeals for the District of Columbia Circuit and the President’s nominee to fill
the seat vacated by Justice Scalia.6 The two reports, taken together, may assist Members of
Congress and their staff in assessing the impact that replacement of Justice Scalia might have
upon the High Court’s rulings.
Other CRS reports address the procedural issues that the vacating of Justice Scalia’s seat poses
for the Court, as well as the processes for nominating and confirming Supreme Court Justices.
See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an EightMember Supreme Court, by (name redacted)
; CRS Report R44235, Supreme Court Appointment
Process: President’s Selection of a Nominee, by (name redacted) ; CRS Report R44236,
1
See, e.g., John G. Roberts, Jr., Statement by Chief Justice John G. Roberts, Jr. (February 13, 2016), available at
http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_02-13-16.
2
By comparison, the Supreme Court website notes that the longest serving Chief Justice, John Marshall, served 34
years, 5 months and 11 days, and the longest serving Associate Justice, William O. Douglas, served 36 years, 7 months,
and 8 days. See Supreme Court of the United States, Frequently Asked Questions (FAQ), Version 2014.1 (March 14,
2016), available at http://www.supremecourt.gov/faq_justices.aspx.
3
See infra “Role of the Judiciary” and “Statutory Interpretation.”
4
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS xxviii-xxix (2012).
5
See infra notes 10, 35-36 and accompanying text.
6
See, e.g., White House, President Obama’s Supreme Court Nomination, available at https://www.whitehouse.gov/
scotus (last accessed: March 16, 2016).
Congressional Research Service
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, by
(name redact ed) ; and CRS Report R44234, Supreme Court Appointment Process: Senate
Debate and Confirmation Vote, by (name redacted) .
Role of the Judiciary7
Nearly thirty years ago, at the swearing-in ceremony of Justice Scalia, President Ronald Reagan
quoted Justice Felix Frankfurter, the famed defender of judicial restraint on the Court during the
mid-20th century, stating that “The highest exercise of judicial duty is to subordinate one’s
personal pulls and one’s private views to the law.”8 Comparing then-Judge Scalia to Justice
Frankfurter, President Reagan noted that the former federal judge’s nomination to the Supreme
Court was due in part to what the President perceived as his commitment to the principles of
judicial restraint and deference to democratic institutions of government.9 While an open debate
exists as to whether Justice Scalia’s opinions on the High Court were truly divorced from his
“personal pulls” and “private views,”10 Justice Scalia’s jurisprudence was deeply influenced by
his concerns about the proper role of the judiciary in a democratic society. In some of his most
famous dissents on the Court, Justice Scalia voiced pronounced criticisms about what he viewed
as the majority’s misapprehensions about the role of the federal judiciary.11 For example, in the
2014 term, in dissenting from the majority’s holding that the due process and equal protection
provisions of the Fourteenth Amendment require states to license marriages between two persons
of the same sex,12 Justice Scalia, in a sharply worded opinion, described the majority approach as
“a naked judicial claim to legislative ... power,” amounting to an undemocratic “system of
government that makes the People subordinate to a committee of nine unelected lawyers....”13 Put
another way, Justice Scalia’s jurisprudence was driven in part out of skepticism regarding the role
7
CRS Legislative Attorney (name redacted) authored this section of the report.
See President Ronald Reagan at the Swearing in of Chief Justice William H. Rehnquist and Justice Antonin Scalia at
the White House, September 26, 1986, in ORIGINALISM: A QUARTER-CENTURY OF DEBATE 95, 97 (Steven G. Calabresi
ed., 2007).
9
Id. (“Chief Justice Rehnquist and Justice Scalia have demonstrated in their opinions that they stand with Holmes and
Frankfurter on [judicial restraint]. I nominated them with this principle very much in mind.”).
10
Compare Mark Joseph Stern, Antonin Scalia Will Be Remembered as One of the Greats, SLATE (February 13, 2016),
available at http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/antonin_scalia
_was_a_truly_great_supreme_court_justice.html (“But to call [Justice Scalia] nothing more than a ‘conservative’
would be to overlook the remarkable nuance and complexity of his jurisprudence.... Scalia cast a decisive vote in the
most important free speech case of the 1980s, Texas v. Johnson, ... [h]e wrote the landmark majority opinion in 2011’s
Brown v. EMA, a double victory for First Amendment advocates ... [a]nd he dissented in Maryland v. King, arguing that
the Fourth Amendment forbids law enforcement from collecting DNA from arrestees.”) with Bennett L. Gershman,
Justice Scalia’s Faux Originalism, HUFFINGTON POST (February 18, 2016), available at
http://www.huffingtonpost.com/bennett-l-gershman/justice-scalias-faux-orig_b_9265726.html (“Justice Scalia was, in
fact, one of the most unabashedly partisan judges ever to sit on the Supreme Court. His manipulation of the constitution
was brilliant, and maddening, mostly because he and his followers pretend otherwise.”).
11
See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 996 (1992) (Scalia, J., dissenting) (“The Imperial Judiciary
lives. It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will
be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a
Court that ‘speaks before all others for their constitutional ideals’—with the somewhat more modest role envisioned for
these lawyers by the Founders.”); Dickerson v. United States, 530 U.S. 428, 455 (2000) (Scalia, J., dissenting) (“The
issue is whether, as mutated and modified, [the Court’s rulings] must make sense. The requirement that they do so is
the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down
to whatever outcome, case by case, suits or offends its collective fancy.”).
12
See Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2593 (2015).
13
Id. at 2629 (Scalia, J., dissenting).
8
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
of the Supreme Court and the “danger” that an unelected judge “will mistake [his] own
predilections for the law,” undermining the American democratic system.14
To prevent the federal judiciary from overstepping its constitutionally prescribed role, Justice
Scalia’s judicial philosophy, particularly on questions of constitutional law, was undergirded by
two related principles. First, Justice Scalia was a strong proponent of originalism, a mode of
constitutional interpretation which posits that the Constitution’s meaning should be derived from
how its text was understood at the time of adoption.15 Advocating for originalism in the wake of
the constitutional revolution of the Warren and Burger Courts, Justice Scalia complained that the
Supreme Court had too often based its constitutional rulings not on the original meaning of the
Constitution, but on broad, amorphous principles such as discerning what was a “fundamental
value,” tempting judges to imbue the Constitution with their own “political values.”16 For Justice
Scalia, originalism, by establishing “a historical criterion that is conceptually ... separate from the
preferences of the judge himself,” constrained the unelected judiciary.17 Justice Scalia’s
originalism was perhaps most famously displayed in the Court’s 2008 decision striking down the
District of Columbia’s ban on handguns, in part, because the Court viewed the Second
Amendment as originally understood to protect an individual right to possess firearms
unconnected with service in a militia.18
Second, Justice Scalia argued for the creation of concrete and discrete rules, rather than broad
principles or balancing tests, in order to constrain judicial discretion in resolving legal issues.19 As
Justice Scalia noted: “When ... I adopt a general rule ... I not only constrain lower courts, I
constrain myself as well. If the next case should have such different facts that my political or
policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those
preferences; I have committed myself to the governing principle.”20
In this vein, Justice Scalia wrote several opinions establishing bright-line rules in areas of
constitutional law formerly bereft of guidance21 and dissented in certain cases that relied on
multipart tests or balancing approaches.22
14
See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 863 (1989).
Id. at 862.
16
Id. at 863.
17
Id. at 864.
18
See District of Columbia v. Heller, 554 U.S. 570, 576 (2008). For an extended discussion of Justice Scalia’s Second
Amendment jurisprudence, see infra “Right to Bear Arms.”
19
See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989) (herein “Scalia and
Rule of Law”).
20
Id. at 1179; see also Alex Kozinski, My Pizza with Nino, 12 CARDOZO L. REV. 1583, 1588-89 (1991) (“[Rules] are
predictable; they constrain future decisionmakers so they cannot introduce their own personal preferences into the
decision; they enhance the legitimacy of decisions because they make it clear to litigants that their case was decided
through neutral application of a rule rather than on the basis of a judge’s personal preference; and lastly, they embolden
the decisionmaker to resist the will of a hostile majority.”). For a criticism of Justice Scalia’s rules-based approach to
constitutional interpretation, see David L. Faigman, Madisonian Balancing: A Theory of Constitutional Adjudication,
88 NW. U. L. REV. 641, 676 (1994) (“Scalia’s so-called categorical method balances as much as any balancing scheme;
the difference is that Scalia’s strong majoritarian preference results in a balance loaded in favor of the government.”).
21
See, e.g., California v. Hodari D., 499 U.S. 621, 624-26 (1991) (establishing a bright-line definition of what
constitutes a “seizure” for purposes of the Fourth Amendment); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1018
(1992) (establishing a bright-line rule governing “total” takings under the Fifth Amendment); Crawford v. Washington,
541 U.S. 36, 67-68 (2004) (rejecting an “open-ended balancing” approach with respect to interpreting the Sixth
Amendment’s Confrontation Clause).
22
See, e.g., Edwards v. Aguillard, 482 U.S. 578, 640 (1987) (Scalia, J., dissenting) (urging the overruling of the three(continued...)
15
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Nonetheless, while Justice Scalia argued for a confined role for the federal judiciary, the lateJustice did not argue for the wholesale abdication of the judicial role in the American
constitutional scheme. Instead, where original understanding of the Constitution counseled for the
exercise of judicial power, Justice Scalia defended the right of the judicial branch to serve as a
check on democratic institutions.23 Indeed, in recent years, he criticized several opinions of the
Roberts Court, where the Court, in Justice Scalia’s view, “shirk[ed] its job” by refusing to address
the constitutional questions raised by the case at hand.24 Moreover, Justice Scalia’s adherence to
originalism occasionally placed his views at odds with prior case law of the Court, particularly
where the legal precedents, in Justice Scalia’s view, departed from the original meaning of the
Constitution.25 As a result, for Justice Scalia, the principle of stare decisis—that is, the doctrine
that a “court must follow earlier judicial decisions when the same points arise again” in
subsequent cases26—was not a central precept in his constitutional philosophy.27 As such, while
Justice Scalia was an advocate of judicial restraint, he did not advocate for an inactive judiciary.
Statutory Interpretation28
Justice Scalia was widely recognized as the most prominent practitioner and proponent of a textand rules-based approach to statutory interpretation on the Supreme Court at the time of his
death.29 He was widely associated, through his Court opinions and other writings, with
(...continued)
part test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), and stating “I think it time that we sacrifice some
‘flexibility’ for ‘clarity and predictability.’”); Cty. of Riverside v. McLaughlin, 500 U.S. 44, 60 (1991) (Scalia, J.,
dissenting) (“The Court views the task before it as one of ‘balancing [the] competing concerns’ of ‘protecting public
safety,’ on the one hand, and avoiding ‘prolonged detention based on incorrect or unfounded suspicion,’ on the other
hand ... As to those matters, the ‘balance’ has already been struck, the ‘practical compromise’ reached—and it is the
function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and
Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of
Congress confirm to this Court.”).
23
See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 980 n.1 (1992) (Scalia, J., dissenting) (arguing that Loving v.
Virginia, 388 U.S. 1 (1967), which struck down Virginia’s anti-miscegenation laws, was necessitated “by a text—an
Equal Protection Clause that explicitly establishes racial equality as a constitutional value”) (emphasis in original).
24
See Bond v. United States, --- U.S. ---, 134 S. Ct. 2077, 2094 (2014) (Scalia, J., concurring); NASA v. Nelson, 562
U.S. 134, 166 (2011) (Scalia, J., concurring) (“Whatever the virtues of judicial minimalism, it cannot justify judicial
incoherence.”); Nat’l Fed’n of Indep. Bus. v. Sebelius, --- U.S. ---, 132 S. Ct. 2566, 2676 (2012) (Scalia, Kennedy,
Thomas, & Alito, JJ., dissenting) (“In the name of restraint, [the Court] overreaches. In the name of constitutional
avoidance, it creates new constitutional questions.”).
25
See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring) (arguing that Roe v.
Wade, 410 U.S. 113 (1973), should be overruled); Dickerson v. United States, 530 U.S. 428, 461 (2000) (Scalia, J.,
dissenting) (arguing that Miranda v. Arizona, 384 U.S. 436 (1966), should be overruled); Glossip v. Gross, --- U.S. ---,
135 S. Ct. 2726, 2749 (2015) (Scalia, J., concurring) (arguing that Trop v. Dulles, 356 U.S. 86 (1958), should be
overruled).
26
See BLACK’S LAW DICTIONARY 672 (3d pocket ed. 2006).
27
See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 138-40 (1997) (“The whole
function of the doctrine is to make us say that what is false under proper analysis must nonetheless be held to be true,
all in the interest of stability. It is a compromise of all philosophies of interpretation.... Stare decisis is not part of my
originalist philosophy; it is a pragmatic exception to it.”) (herein “SCALIA AND MATTER OF INTERPRETATION”).
28
CRS Legislative Attorney (name redacted) authored this section of the report.
29
Cf. William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 532 (2013)
(“Justice Antonin Scalia is the leading theorist as well as practitioner of what has been dubbed the new textualism.”).
Questions have, however, been raised about the degree to which Justice Scalia’s opinions on the Court were consistent
with his textualist principles. See, e.g., Miranda O. McGowan, Do as I Do, Not as I Say: An Empirical Investigation of
Justice Scalia’s Ordinary Meaning Method of Statutory Interpretation, 78 MISS. L.J. 129, 150 (2009) (finding, among
(continued...)
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
textualism, an interpretative method that would construe statutes based on their text, context, and
structure, rather than through extrinsic evidence of the intent or purpose of the Congress that
enacted the statute.30 He also sought to articulate “canons”—or generally applicable rules—of
statutory interpretation31 and, in deciding cases, advocated for “clear criteria” for judges to
apply.32 Both aspects of Justice Scalia’s jurisprudence on statutory interpretation can be seen as
reflecting his beliefs about the proper role of the courts in the constitutional framework, as
previously noted.33 These aspects of his jurisprudence can also be seen as reactions to the
generally prevailing approaches to statutory interpretation since the New Deal, approaches that
sometimes characterize judges as playing an active role in effecting statutes’ purposes in changed
circumstances.34 While questions have been raised about the implications of Justice Scalia’s
approach to statutory interpretation,35 as well as the consistency with which he applied this
approach in his own opinions while on the Court,36 Justice Scalia is widely seen to have
influenced the manner in which his colleagues on the Court and others approach statutory text,
particularly through his focus on the “ordinary meaning” of words and his general skepticism of
legislative history materials.37
(...continued)
other things, that “[t]wenty-five percent of the dissents in [a] sample of dissents [written by Justice Scalia between
1986 and 2006] involved common law statutes. In them, Justice Scalia abandons textualism.”).
30
See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623-24 (1990); Daniel A. Farber &
Philip F. Frickey, Legislative Intent and Public Choice, 74 VA. L. REV. 423, 455 (1988).
31
See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 49-239, 241339, 341-410 (2012) (setting forth 37 principles generally applicable to legal texts; 20 principles applicable
“specifically to governmental prescriptions,” such as statutes; and 13 fallacies); Finley v. United States, 490 U.S. 545,
556 (1989) (“What is of paramount importance is that Congress be able to legislate against a background of clear
interpretive rules, so that it may know the effect of the language it adopts.”).
32
Gisbrecht v. Barnhart, 535 U.S. 789, 812 (2002) (Scalia, J., dissenting) (expressing concern that the majority’s
“hybrid approach establishes no clear criteria and hence will generate needless satellite litigation”); see also Comm’r v.
Estate of Hubert, 520 U.S. 93, 122-38 (1997) (Scalia, J., dissenting) (similar).
33
See supra “Role of the Judiciary”; see also Morrison v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J., dissenting) (“[A]
government of laws means a government of rules.”); William D. Popkin, An “Internal” Critique of Justice Scalia’s
Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1156 (1991/1992) (discussing Justice Scalia’s concern that
judicial discretion in interpreting statutes is inconsistent with a government of rules).
34
See, e.g., McGowan, supra note 29, at 138 (noting that the “core of [Justice Scalia’s] method of statutory
interpretation and its objectives sharply diverge from that of his former professors,” Henry M. Hart, Jr., and Albert M.
Sacks, who had played a key role in articulating the purpose-oriented approach to statutory interpretation described
here).
35
See, e.g., William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 536
(2013) (noting “three big problems” with the canon-based approach put forth in Justice Scalia’s 2011 book, Reading
Law and suggesting that, because of these problems, the “actual effect of the Scalia-Garner canons would not be greater
judicial restraint but instead a relatively less constrained and somewhat more antidemocratic textualism”);“Internal”
Critique of Justice Scalia’s Theory, supra note 33, at 1138-39 (“Justice Scalia can be faulted for inconsistency”).
36
See supra note 29 and accompanying text.
37
See, e.g., James J. Brudney & Corey Ditslear, Liberal Justices’ Reliance on Legislative History: Principle, Strategy,
and the Scalia Effect, 29 BERKELEY J. EMP. & LAB. L. 117, 122 (2008) (finding that, between 1986 and 2006, “liberal”
Justices seem to have opted not to rely upon legislative history materials in certain majority opinions that Justice Scalia
joined because of his well-known opposition to the use of such materials); Thomas W. Merrill, Textualism and the
Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 357 (1994) (noting greater use of dictionaries and less use of
legislative history in the 1988-1989 term, when Justice Scalia was part of the Court, as compared to the 1981 term,
when he was not on the Court); Looking It Up: Dictionaries and Statutory Interpretation, 107 HARV. L. REV. 1437,
1439 (1994) (finding that Justice Scalia had been “the most willing to employ dictionaries” of the Justices on the Court
during the 1992 term).
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
One key aspect of Justice Scalia’s textualism was his purported focus on the ordinary meaning of
words—or the meaning they would have had to persons at the time of the statute’s enactment—
unless the context indicates that the words bear a technical meaning.38 His opinion for the
majority of the Court in MCI Telecommunications Corp. v. American Telephone & Telegraph Co.
can be seen to illustrate this.39 There, in finding that language in the Federal Communications Act
(FCA) permitting the Federal Communications Commission (FCC) to “modify any requirement”
of the statute did not authorize “basic and fundamental changes in the scheme” created by the
act,40 Justice Scalia emphasized that, at the time of the FCA’s enactment in 1934, “modify” had “a
connotation of increment or limitation,”41 as demonstrated by contemporaneous and subsequent
dictionary definitions of this word.42 He further responded to concerns, raised by Justice Stevens
in dissent, about “rigid literalism” depriving the FCC of the “flexibility Congress meant it to have
in order to implement the core policies of the Act in rapidly changing conditions”43 by noting
that:
our estimations, and the Commission’s estimations, of desirable policy cannot alter the
meaning of the [FCA]. For better or worse, the Act establishes a rate-regulation, filedtariff system for common-carrier communications, and the Commission’s desire “to
‘increase competition’ cannot provide [it] authority to alter the well-established statutory
filed rate requirements”....44
This is not to say that Justice Scalia afforded congressional “purpose” no role in statutory
interpretation. To the contrary, he recognized, as the goal of statutory interpretation, the
formulation of “an interpretation of the statute that is reasonable, consistent, and faithful to its
apparent purpose.”45 However, for Justice Scalia, the statute’s purpose was to be ascertained from
its text,46 and an interpretation based solely upon the statute’s alleged purpose could not prevail
over unambiguous statutory text to the contrary.47
The other key aspect of Justice Scalia’s textualism was his refusal to consider legislative history
materials—such as committee reports, reports of congressional hearings, and records of
38
See, e.g., Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) (“[F]irst, find the ordinary meaning of
the language in its textual context; and second, using established canons of construction, ask whether there is any clear
indication that some permissible meaning other than the ordinary one applies. If not—and especially if a good reason
for the ordinary meaning appears plain—we apply that ordinary meaning.”); see also Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 465 (2001) (“Were it not for the hundreds of pages of briefing respondents have submitted on the
issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the
standards. The language, as one scholar has noted, ‘is absolute.’”) (internal citation omitted).
39
512 U.S. 218 (1994).
40
Id. at 225.
41
Id. at 225, 228.
42
Id. at 225-28. It is in this discussion that Justice Scalia memorably takes issue with Webster’s Third New
International Dictionary—which alone among the dictionaries cited provides a more expansive definition of
“modify”—as potentially reflecting “intentional distortions, or simply careless or ignorant misuse.” Id.
43
Id. at 235 (Stevens, J., dissenting). Elsewhere, Justice Scalia expressly objects to the equation of textualism and
literalism or “strict constructionism.” See, e.g., SCALIA AND MATTER OF INTERPRETATION, supra note 27, at 23.
44
512 U.S. at 234.
45
Blanchard v. Bergeron, 489 U.S. 87, 99-100 (1989) (Scalia, J., concurring).
46
See, e.g., Moskal v. United States, 498 U.S. 103, 129-30 (1990) (Scalia, J., dissenting) (“The whole issue before us
here is how ‘broad’ Congress’ purpose in enacting § 2314 was.... The answer to that question is best sought by
examining the language that Congress used....”).
47
See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 403 (2010) (“We cannot rewrite
[the statute] to reflect our perception of legislative purpose.”) (internal citations omitted); K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 318, 325 (1988) (Scalia, J., concurring in part and dissenting in part) (similar).
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congressional debates—in construing statutory text. Some Justices have taken the view that
consideration of such materials informs their understanding of a statute’s meaning or the
legislature’s purpose.48 However, Justice Scalia rejected this view, in part, because of
constitutional considerations, noting that “the only language that constitutes ‘a Law’ within the
meaning of the Bicameralism and Presentment Clause of Article I, § 7, and hence the only
language adopted in a fashion that entitles it to our attention, is the text of the enacted statute.”49
He also expressed concerns that legislative history materials are neither drafted by legislators nor
considered by them when voting on bills,50 a view which may not be entirely in keeping with
actual congressional practice as to certain types of legislative history materials.51 In addition, he
feared that, if legislative history materials were to be used, judges could select, from among the
wide range of legislative history materials on most topics, those materials that support their
preferred policy positions, in much the same manner as a person “walking into a crowded cocktail
party and looking over the heads of the guests to pick out [his] friends.”52 Unlike some other
practitioners of textualism,53 Justice Scalia even objected to the use of legislative history
materials to confirm text-based interpretations of statutes on the grounds that such use provides a
“false and disruptive lesson in the law” by fostering the belief that “an ‘unambiguous and
unequivocal’ statute can never be dispositive.” 54 He did, however, express a willingness to
consider legislative history materials to determine the contexts in which particular words had
been used when ascertaining their ordinary meaning.55
Administrative Law56
Justice Scalia’s opinions on administrative law can be seen to reflect his broader text-based
approach to statutory interpretation and his commitment to bright-line rules. For example, Justice
Scalia’s opinion for the Court in FCC v. Fox Television Stations can be read as illustrating his
commitment to textualism.57 In that case, in response to allegations that an FCC decision was
“arbitrary and capricious” under the Administrative Procedure Act (APA), the lower court applied
48
See, e.g., United States v. Thompson/Center Arms Co., 504 U.S. 505, 516 n.8 (1992) (noting Justice Frankfurter’s
view that legislative history materials can “yield [the] true meaning” of a statute); W. Va. Univ. Hosp., Inc. v. Casey,
499 U.S. 83, 113 (1991) (Stevens, J., dissenting) (arguing for the use of legislative history materials).
49
Zedner v. United States, 547 U.S. 489, 509-10 (2006) (Scalia, J., concurring); see also Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010) (Scalia, J., concurring); Conroy v.
Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring).
50
See, e.g., Blanchard, 489 U.S. at 98 (Scalia, J., concurring) (“I am confident that only a small proportion of the
Members of Congress read either one of the Committee Reports in question....”).
51
See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside: An Empirical Study of
Congressional Drafting, Delegation and the Canons: Part I, 65 STANFORD L. REV. 901, 964-90 (2013) (discussing the
view of congressional staffers that certain legislative history materials are considered by Members of Congress when
voting on proposed legislation).
52
SCALIA AND GARDNER, supra note 31, at 377 (repeating a quotation attributed to Judge Harold Leventhal of the U.S.
Court of Appeals for the District of Columbia Circuit).
53
See, e.g., Zedner, 547 U.S. at 501 (majority opinion, written by Justice Alito, noting that the textualist interpretation
offered by the Court is “entirely in accord with the Act’s legislative history”); Elliot M. Davis, Note, The Newer
Textualism: Justice Alito’s Statutory Interpretation, 30 HARV. J.L. & PUB. POL’Y 983, 996-97 (2007) (discussing Judge
Easterbrook’s use of legislative history materials in limited contexts).
54
Conroy, 507 U.S. at 518-19 (Scalia, J., concurring).
55
See, e.g., SCALIA AND GARDNER, supra note 31, at 388.
56
CRS Legislative Attorney (name redacted) authored this section.
57
556 U.S. 502 (2009).
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a heightened review standard because the decision reflected a change from the agency’s prior
policy.58 That court required the agency to justify why the reasoning for the original policy was
no longer “dispositive,” and why the new policy “effectuates” the statute at least as well as the
prior one.59 The Supreme Court reversed, ruling that the APA did not authorize a heightened form
of review in such situations.60 Echoing a recurring theme in Supreme Court cases,61 Justice
Scalia’s opinion for the Court invalidated a lower court practice that imposed judicially created
standards on agencies beyond the text of the APA.62 Justice Scalia, in particular, rejected the
dissenters’ view that heightened scrutiny is appropriate when reviewing the actions of
independent agencies63 as the wrong solution to the important “dilemma posed by the Headless
Fourth Branch” of government.64 In his view, “letting Article III judges—like jackals stealing the
lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive”
would only “magnify” the problem.65
In a similar vein, Justice Scalia resisted efforts to modify the doctrine of judicial deference to
reasonable agency interpretations of ambiguous statutes—set forth by the Court in Chevron
U.S.A., Inc. v. Natural Resources Defense Council66—in ways that he thought compromised its
clarity. Though the doctrine of Chevron deference was established before he was appointed to the
Court, Justice Scalia appears to have supported the doctrine as an important background principle
against which Congress could legislate.67 For example, in United States v. Mead, Justice Scalia
dissented from the majority opinion, which held that Chevron deference applies only if Congress
intended for the agency to speak with the force of law and the agency’s position “was
promulgated in the exercise of that authority;” otherwise the agency could receive “Skidmore
deference,” which accords weight to an agency’s position based only on its persuasiveness.68 He
58
See Fox Television Stations, Inc. v. Fed. Commc’ns Comm’n, 489 F.3d 444, 447 (2d Cir. 2007).
Id. at 456-57 (quoting N.Y. Council, Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 757 F.2d 502, 508
(2d Cir. 1985)).
60
FCC, 556 U.S. at 530.
61
See Perez v. Mortgage Bankers Ass’n, --- U.S. ---, 135 S. Ct. 1199, 1206 (2015); Vermont Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).
62
FCC, 556 U.S. at 513-18.
63
This at least was Justice Scalia’s characterization of Justice Stevens’s and Justice Breyer’s position. Id. at 523-24; see
id. at 540 (Stevens, J., dissenting) (“Consequently, the FCC ‘cannot in any proper sense be characterized as an arm or
an eye of the executive’ and is better viewed as an agent of Congress established ‘to carry into effect legislative policies
embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified
duties as a legislative ... aid.’”) (quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935)); id. at 547-48
(Breyer, J., dissenting) (“But that agency’s comparative freedom from ballot-box control makes it all the more
important that courts review its decisionmaking to assure compliance with applicable provisions of the law.”).
64
Id. at 525-26.
65
Id. at 526.
66
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984).
67
United States v. Mead Corp., 533 U.S. 218, 257 (2001) (Scalia, J., dissenting) (“Chevron sets forth an across-theboard presumption, which operates as a background rule of law against which Congress legislates: Ambiguity means
Congress intended agency discretion.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law,
1989 DUKE L.J. 511, 517 (1989) (similar). While a defender of the principles animating Chevron deference, Justice
Scalia was also careful to emphasize that Chevron was inapplicable when a statute was unambiguous. When an agency
interpretation is “inconsistent with the plain meaning” of the statute, the agency receives no deference. INS v. CardozoFonseca, 480 U.S. 421, 453 (1987) (Scalia, J., concurring) (“Since the Court quite rightly concludes that the INS’s
interpretation is clearly inconsistent with the plain meaning of that phrase and the structure of the Act, there is simply
no need and thus no justification for a discussion of whether the interpretation is entitled to deference.”) (internal
citations omitted); Scalia and Rule of Law, supra note 19, at 1183 (“It is rare, however, that even the most vague and
general text cannot be given some precise, principled content—and that is indeed the essence of the judicial craft.”).
68
Mead, 533 U.S. at 226-27.
59
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did so because, in his view, the majority’s limitation upon Chevron deference would result in
confusion since the Court had failed to articulate a clear rule regarding the circumstances in
which Chevron now applied.69 Further, he noted that application of Skidmore deference was
impractical, as it requires courts to accord agency positions “some vague and uncertain amount of
respect.”70
Likewise, Justice Scalia objected to the Court’s opinion in National Cable & Telecommunications
Association v. Brand X Internet Service, which held that, when an agency interpretation qualifies
for Chevron deference, a prior judicial interpretation of the statute may “trump” the agency’s
view only if “the prior court decision holds that its construction follows from the unambiguous
terms of the statute.”71 Aside from constitutional concerns,72 Justice Scalia emphasized that the
Court’s new rule, like the rule in Mead, would cause confusion for lower courts as they attempted
to determine whether judicial decisions issued before Chevron or Brand X were suitably
unambiguous in their holdings.73 A similar animating principle also appears in Justice Scalia’s
majority opinion in City of Arlington v. FCC, which held that Chevron applies even to an
agency’s interpretation of a statute that is ambiguous concerning the agency’s jurisdiction.74 In
this case, Justice Scalia reasoned that the dissent’s proposed distinction between jurisdictional and
nonjurisdictional questions was illusory. In his view, almost any question concerning an agency’s
authority could be framed as jurisdictional; thus, regardless of the question’s framing, the ultimate
issue will be “whether the agency has stayed within the bounds of its statutory authority.”75
Consequently, when Congress authorizes an agency to administer a statute, and the agency
promulgates an interpretation exercising that authority, Chevron applies. The alternative, he
reasoned, was unworkable because it would have required courts to inquire de novo, as an initial
matter, into whether Congress truly had delegated as to the particular issue before the court.76
Finally, on an issue important not only to administrative law but to all of constitutional law,77
Justice Scalia had a profound effect on the modern jurisprudence respecting “standing,” or the
ability of a party to seek relief from a federal court. Even before he arrived at the Court, Justice
Scalia had well-defined views on standing, viewing the doctrine as a means to prevent courts
from overreaching into issues more appropriately resolved by the political branches. In a seminal
1983 law review article, he argued that the “judicial doctrine of standing is a crucial and
inseparable element” of the broader principle of separation of powers, “whose disregard will
inevitably produce ... an overjudicialization of the processes of self-governance.”78 In several
69
Id. at 245-46 (Scalia, J., dissenting).
Id. at 246 (Scalia, J., dissenting).
71
545 U.S. 967, 982 (2005).
72
Id. at 1017 (Scalia, J., dissenting) (“This is not only bizarre. It is probably unconstitutional.”).
73
Id. at 1018-19 (Scalia, J., dissenting); see also United States v. Home Concrete & Supply, LLC, --- U.S. ---, 132 S.
Ct. 1836, 1846-47 (2012) (Scalia, J., concurring) (“For many of those earlier cases, therefore, it will be incredibly
difficult to determine whether the decision purported to be giving meaning to an ambiguous, or rather an unambiguous,
statute.”); id. at 1847 (“Instead of doing what Brand X would require, however, the plurality manages to sustain the
justifiable reliance of taxpayers by revising yet again the meaning of Chevron—and revising it yet again in a direction
that will create confusion and uncertainty.”).
74
--- U.S. ---, 133 S. Ct. 1863, 1874-75 (2013).
75
Id. at 1868 (emphasis omitted).
76
Id. at 1874 (asserting that the dissent’s proposed requirement lacked a clear guiding principle, and would effectively
function as a “totality-of-the-circumstances test,” “render[ing] the binding effect of agency rules unpredictable and
destroy[ing] the whole stabilizing purpose of Chevron”).
77
GARY LAWSON, FEDERAL ADMINISTRATIVE LAW 849 (2009).
78
See Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L.
(continued...)
70
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important cases, Justice Scalia successfully pressed his views on standing while on the Court. For
example, he authored the majority opinion in Lujan v. Defenders of Wildlife, widely considered to
constitute the foundation of modern standing law.79 In Lujan, the Court, noting that standing is
“more difficult to establish[]” when the plaintiff is not the direct “object of the government action
or inaction he challenges,”80 denied standing to several organizations challenging an
environmental regulation on the grounds that they had failed to allege adequately that they had
sustained direct and personal injuries.81 In the cases that followed Defenders, Justice Scalia
adhered to this approach, authoring several pivotal decisions that restricted access to the courts
for those challenging administrative agency action82 and rigorously dissenting in decisions where
the Court relaxed its approach to standing.83 With many of the Court’s standing cases decided by
relatively narrow margins84 and with a major standing case pending on the Court’s current
docket,85 Justice Scalia’s absence from the Court could alter the future of the standing doctrine
and, with that, the ability of plaintiffs to challenge the actions of administrative agencies.
Capital Punishment86
Justice Scalia was not on the Supreme Court when the Court issued its landmark death penalty
ruling in Furman v. Georgia in 1972.87 Furman held that the Eighth Amendment’s prohibition on
“cruel and unusual punishment,” made binding on the states by the Fourteenth Amendment,
forbid capital punishment under the procedures then in effect,88 functionally prohibiting the
imposition of the death penalty in thirty-nine states and the District of Columbia.89 While the
Court reversed course on the moratorium created by Furman four years later in Gregg v. Georgia,
declaring that the death penalty was not per se unconstitutional, the Court did so only after
concluding that Georgia’s sentencing procedures—which required a jury to take into account the
particularized nature of the crime and the particularized characteristics of the individual
defendant—prevented a defendant from being condemned to death “capriciously and
(...continued)
REV. 881, 881 (1983).
79
504 U.S. 555 (1992).
80
Id. at 562.
81
Id. at 571-72.
82
See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109-110 (1998); Summers v. Earth Island Inst., 555
U.S. 488, 496-97 (2009); but see Bennett v. Spear, 520 U.S. 154, 170-71 (1997) (holding that the petitioners
challenging a biological opinion by the Fish and Wildlife Service had met their burden in establishing standing);
Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000) (holding that qui tam realtors
had standing to sue as assignees of the rights of the United States).
83
See, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 29 (1998) (Scalia, J., dissenting); Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs, Inc., 528 U.S. 167, 198 (2000); Massachusetts v. EPA, 549 U.S. 497, 549 (2007) (Scalia, J.,
dissenting); Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, --- U.S. ---, 135 S. Ct. 2652, 2694 (2015) (Scalia,
J., dissenting).
84
See generally Margaret McDonald, Summers v. Earth Island Institute: Overhauling the Injury-in-Fact Test for
Standing to Sue, 71 LA. L. REV. 1053, 1066 (2011) (cataloging the recent history of standing at the Supreme Court and
noting that the “issue of standing ... often divides the Court....”).
85
See Spokeo, Inc. v. Robins, Docket No. 13-1339.
86
(name redacted), Senior Specialist in American Public Law, authored this section of the report.
87
See 408 U.S. 238 (1972) (per curiam).
88
Id. at 239-40.
89
See Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional
Regulation of Capital Punishment, 109 HARV. L. REV. 355, 362 (1995).
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arbitrarily.”90 In other words, Furman and Gregg resulted in the Court actively scrutinizing the
manner in which the states impose capital punishment.
Justice Scalia disagreed with much of the basis for the line of cases beginning with Furman,91 as
those cases were not grounded in the original meaning of the Constitution, which itself
contemplates the death penalty.92 Instead, the Court’s recent capital punishment jurisprudence
had, in his opinion, been misdirected by the 1958 case of Trop v. Dulles,93 which held that the
Eighth “Amendment must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society.”94 Over the years, Justice Scalia spoke for the Court, or concurred,
when the Court declined to restrict the prerogatives of jurors, state judges, or state legislators with
regard to the death penalty;95 he dissented when the Court did not—as was more often the case.96
In particular, Justice Scalia found himself consistently in dissent in several cases over the past
fifteen years that restricted the use of capital punishment with regard to particular classes of
defendants, such as minors,97 the cognitively disabled,98 and perpetrators of crimes where the
victim’s life was not taken.99
90
See 428 U.S. 153, 206 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) (“The basic concern of Furman
centered on those defendants who were being condemned to death capriciously and arbitrarily ... The new Georgia
sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the
particularized characteristics of the individual defendant.”).
91
See Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring) (“What compelled Arizona (and many other
states) to specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed was the
line of this Court’s cases beginning with Furman v. Georgia. In my view, that line of decisions had no proper
foundation in the Constitution.”).
92
See U.S. CONST. amend. V (requiring the presentment or indictment of a grand jury in order to hold a person to
answer for “a capital, or otherwise infamous crime,” and prohibiting the deprivation of “life” without due process of
law).
93
356 U.S. 86, 101 (1958). “[Trop] has caused more mischief to our jurisprudence, to our federal system, and to our
society than any other that comes to mind.” Glossip v. Gross, --- U.S. ---, 135 S. Ct. 2726, 2749 (2015) (Scalia, J.,
concurring).
94
356 U.S. at 101.
95
See, e.g., Payne v. Tennessee, 501 U.S. 808, 833 (1991) (Scalia, J., concurring) (internal citations omitted) (“The
Court correctly observes the injustice of requiring the exclusion of relevant aggravating evidence during capital
sentencing, while requiring the admission of all relevant mitigating evidence. I have previously expressed my belief
that the latter requirement is both wrong, and when combined with the remainder of our capital sentencing
jurisprudence unworkable.... But more broadly and fundamentally still, [the Eighth Amendment] permits the People to
decide (within the limits of other constitutional guarantees) what is a crime and what constitutes aggravation and
mitigation of a crime.”); see also Tuilaepa v. California, 512 U.S. 967, 980 (1994) (Scalia, J. concurring) (“[O]nce a
State has adopted a methodology to narrow the eligibility for the death penalty ... the distinctive procedural
requirements of the Eighth Amendment have been exhausted. Today’s decision adheres to our cases which
acknowledge additional requirements, but since it restricts their further expansion it moves in the right direction.”);
Kansas v. Marsh, 548 U.S. 163, 182 (2006) (Scalia, J., concurring) (“Kansas’s death-penalty statute easily satisfies
even a capital jurisprudence as incoherent as ours has become.... I do not endorse that incoherence, but adhere to my
previous statement that “I will not ... vote to uphold an Eighth Amendment claim that the sentencer’s discretion has
been unlawfully restricted.”). Justice Scalia’s last majority opinion for the Court upheld death sentences in separate
cases on appeal from the Kansas Supreme Court. See Kansas v. Carr, --- U.S. ---, 136 S. Ct. 633 (2016).
96
See, e.g., Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, J., dissenting); Roper v. Simmons, 543 U.S. 551, 607
(2005) (Scalia, J., dissenting).
97
Roper, 543 U.S. at 607.
98
Atkins, 536 U.S. at 337 (Scalia, J., dissenting).
99
Kennedy v. Louisiana, 554 U.S. 407, 447 (2008) (Alito, J., dissenting, joined by Roberts, C.J., & Scalia & Thomas,
JJ.).
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In two recent cases where the Court determined that the petitioners had failed to establish that a
particular method of execution offended the Eighth Amendment, Justice Scalia took issue with his
fellow Justices’ view that the Constitution prohibits capital punishment. For example, in Baze v.
Rees, where a majority of the Court rejected a challenge to Kentucky’s lethal injection protocol as
a method of execution, Justice Stevens concurred in the judgment, voicing his opinion that the
death penalty “is [a] patently excessive and cruel and unusual punishment violative of the Eighth
Amendment” because of its “negligible” benefits to the state.100 In response, Justice Scalia wrote
that Justice Stevens’s declaration was “insupportable as an interpretation of the Constitution,
which generally leaves it to democratically elected legislatures rather than courts to decide what
makes [a] significant contribution to social or public purposes.”101 Subsequently, in 2015, in a
reprise of the Baze litigation, the Court split 5-4, with Justice Scalia in the majority, upholding
Oklahoma’s legal injection protocol.102 Justice Breyer, joined by Justice Ginsburg in dissent,
argued that it was “highly likely that the death penalty violates the Eighth Amendment.”103 In a
pointed concurrence echoing his concurrence in Baze, Justice Scalia responded, arguing that the
“Framers of our Constitution” left the propriety of the death penalty “to the People to decide,”
and in rejecting the views of the Framers, Justice Breyer did “not just reject the death penalty, he
reject[ed] the Enlightenment.”104 As a result, while Justice Scalia’s views on capital punishment
and the Eighth Amendment rarely commanded a majority on the Court, they are likely to figure
prominently if the Court ever were to revisit Furman and its progeny.
Civil Liability105
Academic literature has identified, as an undercurrent of the Roberts Court’s recent jurisprudence,
a tendency for the Court to favor business interests, particularly in the context of limiting
business’s exposure to civil liability resulting from allegedly faulty products, discriminatory
practices, or fraudulent activity.106 The Roberts Court’s perceived willingness to curb access to
civil remedies takes place against the backdrop of a broader political debate about the need for
civil liability reform—including tort liability reform,107 with business groups arguing that
frivolous lawsuits result in the needless loss of billions of dollars,108 while the plaintiffs’ bar
100
553 U.S. 35, 86 (2008) (Stevens, J., concurring).
Id. at 87 (Scalia, concurring in the judgment).
102
Glossip v. Gross, --- U.S. ---, 135 S. Ct. 2726 (2015).
103
Id. at 2776-77 (Breyer, J., dissenting).
104
Id. at 2749 (Scalia, J., concurring).
105
CRS Legislative Attorney (name redacted) authored this section of the report.
106
See, e.g., Lee Epstein, William M. Landes, & Richard A. Posner, How Business Fares in the Supreme Court, 97
MINN. L. REV. 1431, 1472 (2013) (“Whether measured by decisions or Justices’ votes, a plunge in warmth toward
business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much
friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were.”); Doug Kendell & Tom
Donnelly, Not So Risky Business: The Chamber of Commerce’s Quiet Success Before the Roberts Court, Constitutional
Accountability Center (May 1, 2013), available at http://theusconstitution.org/text-history/1966/not-so-risky-businesschamber-commerces-quiet-success-roberts-court-early-report (“Lost in this shuffle is an emerging story about the
Supreme Court’s business-heavy caseload this Term and the Chamber of Commerce’s continued success before the
Roberts Court generally.”); Erwin Chemerinsky, The Roberts Court at Age Three, 54 WAYNE L. REV. 947, 962 (2008)
(“[T]he Roberts Court is the most pro-business Court of any since the mid-1930s.”).
107
Tort law is “built on the bedrock of state common law,” or judge-created legal norms, see Robert L. Rabin,
Federalism and the Tort System, RUTGERS L. REV., 1 (1997), and provides relief to persons who have suffered from the
wrongful acts of others. See generally RESTATEMENT (SECOND) OF TORTS.
108
See, e.g., U.S. Chamber of Commerce, Legal Reform, available at https://www.uschamber.com/legal-reform?tab=
(continued...)
101
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contends that curbing access to the courts deprives legitimate claimants of their right to be
heard.109 Justice Scalia was a critical and unique voice in support of the Supreme Court’s recent
jurisprudence reducing the potential exposure of businesses and other defendants to civil suits.110
Specifically, his jurisprudence, in sharp contrast to that of his colleagues on the Court,111
eschewed relying on the Constitution to impose limits on the perceived excesses of the civil
liability system,112 and instead generally relied on relatively broad readings of federal law to limit
the scope of the state tort and other civil remedies often relied upon by the plaintiffs’ bar. 113
Of particular note, Justice Scalia frequently interpreted federal law to preempt or displace state
laws, including state common-law tort claims, which had the potential to expose civil defendants
to significant monetary liability. Early in Justice Scalia’s tenure on the Court, in cases like
Cipollone v. Liggett Group114 and Medtronic v. Lohr,115 the Justices fractured on the question of
whether clauses in various federal statutes that expressly purported to displace state laws that
conflicted with the federal statute preempted common-law tort claims, as well as positively
enacted laws such as statutes and regulations.116 In these cases, Justice Scalia, reflecting his
preference for textualism, generally dissented from the majority, in part, by construing the statutes
in question according to their “ordinary meaning” and arguing that federal statutes which preempt
any contrary state “requirements” necessarily displace state tort law because tort claims
effectively “require” compliance with certain common-law duties.117 However, in his later years
(...continued)
position (last accessed: Mar. 17, 2016) (“America has the costliest legal system in the world. Lawsuits cost the U.S.
economy $264 billion per year, or about $850 per year for every man, woman, and child in the United States. The
ultimate victims of lawsuit abuse are consumers and workers who suffer from higher prices and lost jobs and
benefits.”).
109
See, e.g., Evan L. Goldman, The Real Victims of Tort Reform, 178 N.J. L.J. 1195 (2004) (“While there is no
question that our livelihood as attorneys is at stake, it is the general public who will suffer the most. The tort system as
we know it has provided access to the court system for individuals who would never have been able to do so were it not
for the contingency fee system. As a result, cases that have improved the safety of vehicles, machines, power saws and
lawnmowers could never have been brought were it not for attorneys who work for the middle class without guaranteed
fees.”).
110
See Epstein, Landes, & Posner, supra note 106, at 1450 (opining that Justice Scalia was the fourth “most favorable
[Justice] to business” since 1946, being eclipsed only by Chief Justice Roberts and Justices Thomas and Whittaker).
111
See BMW of N. Am. v. Gore, 517 U.S. 559 (1996) (holding unconstitutional a $2 million punitive damage award);
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (holding unconstitutional a $145 million punitive
damage award).
112
BMW, 517 U.S. at 598 (Scalia, J., dissenting) (“Today we see the latest manifestation of this Court’s recent and
increasingly insistent “concern about punitive damages that ‘run wild’”.... Since the Constitution does not make that
concern any of our business, the Court’s activities in this area are an unjustified incursion into the province of state
governments.”) (internal citations omitted); see also State Farm Mut. Auto. Ins., 538 U.S. at 439 (expressing the same
concerns expressed in Gore).
113
See generally Kevin LaCroix, Justice Scalia’s Business Law Legacy, THE D&O DIARY (February15, 2016),
available at http://www.dandodiary.com/2016/02/articles/class-action-litigation-2/justice-scalias-business-law-legacy/.
114
505 U.S. 504 (1992).
115
518 U.S. 470 (1996).
116
Cipollone, 505 U.S. 524-30 (finding, among other things, that some common-law damages claims based upon the
failure to warn and fraudulent misrepresentation were preempted, but that claims based upon breach of an express
warranty, intentional fraud, and conspiracy were not preempted); Lohr, 518 U.S. at 503 (finding none of the petitioner’s
negligent design, manufacturing, or labeling claims were preempted).
117
Cipollone, 505 U.S. at 548 (Scalia, J., dissenting); Lohr, 518 U.S. at 510 (O’Connor, J., concurring in part and
dissenting in part, joined by Scalia, J.). In so doing, Justice Scalia rejected the majority opinion’s reliance on the
interpretive maxim that a federal statute should ordinarily be read with a presumption against a finding of preemption,
see Lohr, 518 U.S. at 485 (holding that “in ‘all pre-emption cases’ an assumption exists that ‘the historic police powers
(continued...)
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
on the Court, Justice Scalia began garnering majorities for his views on preemption and state tort
claims. For example, in 2008, in Riegel v. Medtronic, Justice Scalia authored an opinion on behalf
of a seven-member majority holding that a provision of the federal Medical Device Act barring
any state “requirement[s] that [are] different from, or in addition to” the act encompasses and
therefore preempts state common-law claims challenging the safety or effectiveness of medical
devices that received premarket approval from the Food and Drug Administration.118 Importantly,
the opinion in Riegel, reflecting a rules-based jurisprudence, established that, because “Congress
is entitled to know what meaning this Court will assign to terms regularly used in its enactments,”
the use of the term “requirements” in a statute necessarily includes common-law duties.119 More
generally, Riegel is indicative of a general trend of the Roberts Court wherein Justice Scalia
authored or joined opinions that interpreted a federal law broadly in holding that it either
explicitly120 or implicitly121 displaced state tort claims against product manufacturers, effectively
reducing their potential financial exposure from juries sitting in one of the fifty states.
With regard to limiting civil liability exposure, Justice Scalia was also deeply influential in
restricting the use of class action lawsuits, a procedural device that allows multiple individuals
whose underlying claim against a party involve common questions of law or fact to resolve them
in a single action.122 For instance, in 2011, in AT&T Mobility v. Concepcion, Justice Scalia, on
behalf of a five-member majority, held that the Federal Arbitration Act (FAA) preempts a
California judicial doctrine which allowed courts to hold unconscionable class action arbitration
waivers in consumer agreements. 123 Two years later, in American Express v. Italian Colors
Restaurant, Justice Scalia, writing for the same five-member Court as in Concepcion, held that
the FAA does not permit courts to invalidate a contractual waiver of class arbitration because the
plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential
recovery.124 In a slightly different context, Justice Scalia authored two majority opinions
interpreting the Federal Rules of Civil Procedure that raised the evidentiary bar for proving that
class certification is appropriate.125 Collectively, as one legal commentator noted, Justice Scalia’s
recent opinions on class action litigation have made “class certification increasingly challenging
(...continued)
of the States were not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of
Congress.’”) (internal citations omitted). See Cipollone, 505 U.S. at 548 (Scalia, J., dissenting) (“Today’s decision
announces what, on its face, is an extraordinary and unprecedented principle of federal statutory construction: that
express pre-emption provisions must be construed narrowly ... there is no merit to this newly crafted doctrine of narrow
construction. Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, our job is to interpret Congress’s decrees of preemption neither narrowly nor broadly, but in accordance with their apparent meaning.”).
118
Riegel v. Medtronic, 552 U.S. 312 (2008). Unlike prior Court opinions, Riegel did not begin with a presumption
against preemption. 552 U.S. at 326 (“The operation of a law enacted by Congress need not be seconded by a
committee report on pain of judicial nullification. It is not our job to speculate upon congressional motives.”) (internal
citation omitted).
119
Id. at 324.
120
See, e.g., Bruesewitz v. Wyeth LLC, 562 U.S. 223, 232 (2011).
121
See, e.g., PLIVA, Inc. v. Mensing, --- U.S. ---, 131 S. Ct. 2567, 2571 (2011); Mut. Pharm. v. Bartlett, --- U.S. ---,
133 S. Ct. 2466, 2480 (2013).
122
See Fed. R. Civ. P. 23.
123
563 U.S. 333 (2011).
124
--- U.S. ---, 133 S. Ct. 2304 (2013).
125
See Wal-Mart v. Dukes, 564 U.S. 338 (2011); Comcast Corp. v. Behrend, --- U.S. ---, 133 S. Ct. 1426 (2013). While
Wal-Mart involved the evidentiary showing necessary to establish that all parties to a class have claims involving
common questions of law or fact, 564 U.S. at 349, Comcast centered on the sufficiency of evidence needed to show
that issues common to the class “predominate” over issues that are unique to each class member. 133 S. Ct. at 1432.
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for plaintiffs.”126 With various cases on the Supreme Court’s docket this term and next potentially
implicating class actions,127 Justice Scalia’s absence could affect the outcome of these cases. In
the wake of Justice Scalia’s death, Dow Chemical reportedly settled a pending class action that
was on appeal to the Supreme Court for $835 million, stating that it no longer believed it could
prevail because of Justice Scalia’s death.128 Dow Chemical’s action here highlights Justice
Scalia’s importance not only for class action litigation, but also for civil liability issues on the
Court more generally.
Civil Rights129
With respect to civil rights, Justice Scalia is generally seen to have taken an adverse view of cases
involving the potential expansion of constitutional or statutory anti-discrimination protections for
minority groups. In this area, he was perhaps best known for his strongly worded dissenting
opinions in cases involving gay rights. Justice Scalia wrote a dissenting opinion in many of the
gay rights cases decided while he was on the Supreme Court.130 These cases included (1) a ruling
invalidating a Colorado constitutional amendment that barred localities from enacting civil rights
protections on the basis of sexual orientation;131 (2) a decision holding that the due process
privacy guarantee of the Fourteenth Amendment extends to protect consensual gay sex;132 (3) a
ruling striking down a federal law that defined marriage as a union between a man and a
woman;133 and (4) the Court’s 2015 decision to constitutionalize the right of same-sex couples to
marry.134 In general, Justice Scalia’s dissenting opinions reflect a view that neither equal
protection nor due process principles, as originally understood by the Congress that enacted the
Fourteenth Amendment, provide a constitutional basis for striking down laws that involve “moral
disapprobation of homosexual conduct,” and that such decisions are best left to the democratic
process.135
Justice Scalia also generally took an unfavorable view of affirmative action in a variety of
contexts. For example, he reliably voted to strike down governmental policies that established
racial preferences for admissions to public elementary, secondary, and postsecondary schools,136
including in the Court’s most recent pronouncement on the subject, Fisher v. University of
Texas.137 In 2013, in Fisher, Justice Scalia joined a majority opinion that reversed and remanded a
126
See Zoe Niesel, What’s Coming for Class Actions, 51 WAKE FOREST L. REV. 101, 101 (2016).
See, e.g., Spokeo, Inc. v. Robins, Docket No. 13-1339; Tysons Food, Inc. v. Bouaphakeo, 14-1146; Microsoft v.
Baker, Docket No. 15-457.
128
See Joshua Jamerson & Brent Kendall, Scalia’s Supreme Court Vacancy Could Leave Companies at a Loss, WALL
ST. J. (February 26, 2016), available at http://www.wsj.com/articles/dow-chemical-settles-lawsuit-citing-supremecourt-position-after-scalias-death-1456491317.
129
CRS Legislative Attorney (name redacted) authored this section of the report.
130
But see Boy Scouts of America v. Dale, 530 U.S. 640, 661 (2000) (holding, with Justice Scalia in the majority, that
the First Amendment prohibited the application of a New Jersey public accommodation law to require the Boy Scouts
to admit an openly gay assistance scoutmaster).
131
Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).
132
Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).
133
United States v. Windsor, --- U.S. ---, 133 S. Ct. 2675, 2698 (2013) (Scalia, J., dissenting).
134
Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2626 (2015) (Scalia, J., dissenting).
135
Lawrence, 539 U.S. at 604 (Scalia, J., dissenting).
136
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306,
378 (2003) (Scalia, J., dissenting); Gratz v. Bollinger, 539 U.S. 244 (2003).
137
--- U.S. ---, 133 S. Ct. 2411 (2013). On remand, the U.S. Court of Appeals for the Fifth Circuit upheld the
(continued...)
127
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
lower court decision upholding a race-conscious undergraduate admissions plan at the University
of Texas at Austin, but he filed a separate concurring opinion indicating that he would have
considered overruling a previous case that had upheld a similar affirmative action program
because of his view that such racial preferences violate the equal protection guarantee of the
Constitution.138 He also questioned the constitutionality of affirmative action in the minority
contracting and employment contexts on the same grounds.139
Finally, in the employment area, Justice Scalia’s opinions produced mixed results. In some
instances, his opinions favored employers in cases involving discrimination complaints by
employees. For example, he authored opinions that rejected class action status for current and
former female Wal-Mart employees who sued the company for pay discrimination;140 dissented
from an opinion that kept alive an employee’s pregnancy discrimination claim;141 and held that an
employee’s challenge of a racially discriminatory seniority system was barred by the statute of
limitations, even though the discriminatory effects of the system remained in place.142 At other
times, however, Justice Scalia ruled in favor of the outcome sought by employees. Examples
include decisions recognizing that sex discrimination may encompass same-sex sexual
harassment;143 finding that an employment discrimination law authorizes retaliation claims by
third parties who have not personally engaged in protected activity;144 and upholding the religious
discrimination claim of a job applicant who wore a headscarf.145
Criminal Law and Procedure146
Justice Scalia’s particular approach to constitutional interpretation—which relied on originalism
and bright-line rules—prompted votes that can generally be seen as protective of the individual
rights of criminal suspects and defendants, sometimes putting him at odds with a more traditional
conservative judicial philosophy.147 While this trend applies to many areas, three in particular
stand out: (1) the Fourth Amendment right to be free from unreasonable searches and seizures in
(...continued)
university’s admissions plan, Fisher v. Univ. of Tex. at Austin, 758 F.3d 633 (5th Cir. 2014), and the Supreme Court
once again granted review, Fisher v. Univ. of Tex. at Austin, 135 S. Ct. 2888 (2015).
138
Id. at 2422 (Scalia, J., concurring).
139
See, e.g., Adarand Constructors v. Peña, 515 U.S. 200, 239 (1995) (Scalia, J., concurring); Richmond v. J. A.
Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring); Johnson v. Transp. Agency, 480 U.S. 616, 657 (1987)
(Scalia, J., dissenting).
140
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
141
Young v. UPS, --- U.S. ---, 135 S. Ct. 1338, 1361 (2015) (Scalia, J., dissenting).
142
Lorance v. AT&T Techs., 490 U.S. 900 (1989). Subsequently, Congress overturned this ruling by legislating on the
topic. P.L. 102-166, §112(2), 105 Stat. 1071 (1991) (codified, as amended, at 42 U.S.C. §2000e-5(e)(2)).
143
Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998).
144
Thompson v. N. Am. Stainless, 562 U.S. 170 (2011).
145
EEOC v. Abercrombie & Fitch Stores, Inc., --- U.S. ---, 135 S. Ct. 2028 (2015).
146
CRS Legislative Attorney (name redacted) authored
this section of the report.
147
See generally Erwin Chemerinsky, Progressive and Conservative Constitutionalism as the United States Enters the
21st Century, 67.L. & CONTEMP. PROBS. 53, 58 (2004) (noting that “[f]or decades, conservatives have sided with the
government in restricting the rights of criminal defendants”); Arnold H. Loewy, A Tale of Two Justices (Scalia and
Breyer), 43 TEX. TECH L. REV. 1203, 1204 (2011) (noting that “Justice Scalia, though in some ways the darling of
conservatives, has frequently strayed from the conservative course. For example, in Fourth Amendment cases such as
Arizona v. Hicks, Kyllo v. United States, and Arizona v. Gant, he led sharply divided Courts into adopting an expansive
view of the Fourth Amendment”).
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
the context of criminal investigations; (2) the Confrontation Clause right of criminal defendants at
trial; and (3) the rule of lenity derived from the Due Process Clause.
Justice Scalia’s solicitude for the individual rights of defendants was displayed in the 2012 global
positioning system (GPS) tracking case, United States v. Jones, in which the government attached
a GPS device to the underbelly of a suspected drug dealer’s vehicle and monitored the vehicle’s
location for four weeks.148 Rather than relying on the Warren Court’s more amorphous
formulation of the Fourth Amendment from Katz v. United States, which typically asks whether
the government’s surveillance intruded on a target’s reasonable expectation of privacy,149 Justice
Scalia instead assessed whether the physical intrusion on Jones’s car would have constituted a
trespass at common law at the time of the founding.150 Looking to the text of the Fourth
Amendment, which protects, among other things, an individual’s “effects,” and to early English
common law cases, he observed that there was “no doubt that such a physical intrusion would
have been considered a ‘search’ within the meaning of the Fourth Amendment when it was
adopted.”151 This holding, which favored the criminal defendant in a federal drug conspiracy
prosecution, arguably expanded what constitutes a Fourth Amendment search,152 and would seem
to favor criminal suspects in the future.153 In one notable example, one year after Jones was
decided, Justice Scalia applied this physical trespass test in Florida v. Jardines to invalidate the
warrantless use of a drug-sniffing dog on the porch of a residence.154 Looking to common law
rules of trespass and licenses, he observed that “an officer’s leave to gather information is sharply
circumscribed when he steps off [the public] thoroughfares and enters the Fourth Amendment’s
protected areas,” which, pursuant to the text of the Amendment, includes an individual’s
“house.”155
Justice Scalia also ruled in favor of criminal defendants in several important Sixth Amendment
lines of cases. First, Justice Scalia’s reading of the text and history of the Sixth Amendment also
led him to discard the Court’s then-prevailing test156 as to the requirements of the Confrontation
Clause, which focused on the inherent reliability of a witness’s out-of-court statement to
determine its admissibility at trial. In Crawford v. Washington, Justice Scalia authored the
majority opinion that instead relied on the common law right of cross examination at trial to
assess the trustworthiness of a statement,157 an arguably more criminal defendant-friendly test.
Justice Scalia, generally a proponent of jury trial rights,158 believed that the Confrontation Clause
148
United States v. Jones, --- U.S. ---, 132 S. Ct. 945 (2012).
See 389 U.S. 347, 360 (1967) (Harlan, J., concurring).
150
Jones, 132 S. Ct. at 949.
151
Id.
152
See Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 SUP. CT. REV. 67, 90 (2012) (“The
history of the Fourth Amendment search doctrine brings us to a surprising conclusion: Jones purports to restore a
trespass test that never previously existed. This poses a potential challenge for future courts because there is little
precedent to guide courts in interpreting the protean concept of trespass.”).
153
Justice Scalia’s judicial philosophy, however, did not always favor suspected criminals. For instance, his opinion in
Maryland v. Shatzer, 559 U.S. 98, 110 (2010), sided with the government, relying on a bright-line rule to limit to 14
days the time period in which law enforcement officials must abstain from questioning a criminal suspect after he has
invoked the right to counsel.
154
See --- U.S. ---, 133 S. Ct. 1409 (2013).
155
Id. at 1415.
156
See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
157
See Crawford v. Washington, 541 U.S. 36, 42-43 (2004) (“The Constitution’s text does not alone resolve this case....
We must therefore turn to the historical background of the Clause to understand its meaning.”).
158
See Rachel E. Barkow, Originalists, Politics, and Criminal Law on the Rehnquist Court, 74 GEO. WASH. L. REV.
(continued...)
149
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
“commands, not that evidence be reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination.”159 In more recent years, Justice Scalia vigorously
defended the scope of the Confrontation Clause’s protections against what he perceived as an
effort to limit the Clause’s reach by other Justices. For example, in one 2015 decision, Justice
Scalia objected to “the Court’s shoveling of fresh dirt upon the Sixth Amendment right
of confrontation so recently rescued from the grave in Crawford ...”160 With Justice Scalia gone
from the Court, the continuing vitality of Crawford and subsequent cases applying his trial-based
approach seems questionable. Second, Justice Scalia’s concern for the jury rights of defendants—
what he called “a fundamental reservation of power in our constitutional structure”—led him to
become the fifth vote in the Court’s landmark ruling in Apprendi v. New Jersey161 and author the
5-4 opinion in Blakely v. Washington,162 which generally hold that facts that increase the
maximum punishment to which the defendant is subject must be determined beyond a reasonable
doubt by a jury and not a judge. These rulings paved the way for Booker v. United States,163
which made the federal sentencing guidelines discretionary, rather than mandatory, and have
worked a profound shift in how criminal prosecutions operate on a day-to-day basis.164
Similarly, Justice Scalia can be seen to have sided with the defendants when the criminal law in
question was found to have been written too vaguely to provide sufficient notice of the conduct
the law prohibits. The most recent example of this approach was his majority opinion in Johnson
v. United States, in which the Court invalidated the so-called “residual clause” of the Armed
Career Criminal Act (ACCA),165 which imposed a 15-year mandatory minimum sentence on any
person who possessed a firearm after having three previous convictions for “violent felonies.”166
In several prior cases, Justice Scalia dissented from the application of the ACCA in specific cases
on the grounds that the “[i]mprecision and indeterminacy” of the term “violent felonies”—which
the statute defines to “involve[] conduct that presents a serious potential risk of physical injury to
another”167—was “inappropriate in the application of a criminal statute” on which “years of
prison hinge[].”168 In Johnson, Justice Scalia relied on the rule of lenity—which serves to require
Congress to write laws with sufficient particularity to give “fair notice” of what conduct is
prohibited—to invalidate the ACCA’s residual clause, noting that “[i]nvoking so shapeless a
(...continued)
1043, 1046 (2006) (noting that “Justices Scalia and Thomas have shown no indication that they are particularly
concerned with defendants’ interests in other contexts, but they are vigorous enforcers of the Sixth Amendment’s jury
trial right because they appear to believe that their chosen legal methodology requires such a conclusion”).
159
Crawford, 541 U.S. at 61.
160
See Ohio v. Clark, --- U.S. ---, 135 S. Ct. 2173, 2184 (2015) (Scalia, J., dissenting).
161
530 U.S. 46, 497 (2000).
162
542 U.S. 296, 313-14 (2004).
163
543 U.S. 220, 243-44 (2005).
164
Kevin R. Reitz, The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes, 105 COLUM. L.
REV. 1082, 1086 (2005) (noting that Blakely has been described as “a legal earthquake, a forty-car pileup, a bombshell,
and a bull in a china shop. It has been called the most significant constitutional decision in criminal justice since
Miranda—and some have opined that its full force will be greater than any past ruling in the field.”).
165
See Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551, 2555 (2015).
166
See 18 U.S.C. §924(e).
167
Id. at §924(e)(2)(B)(ii).
168
See James v. United States, 550 U.S. 192, 216 (2007) (Scalia, J., dissenting); see also Sykes v. United States, 564
U.S. 1, 34 (2011) (Scalia, J., dissenting) (“What does violate the Constitution is approving the enforcement of a
sentencing statute that does not ‘give a person of ordinarily intelligence fair notice’ of its reach, ... and that permits,
indeed invites, arbitrary enforcement....”) (internal citations omitted).
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
provision to condemn someone to prison for 15 years to life does not comport with the
Constitution’s guarantee of due process.”169
Environmental Law170
Justice Scalia is widely viewed to have had an enormous influence on environmental law, which
will continue to be felt in ongoing and future litigation.171 His perspectives on environmental
issues were shaped, in part, by his broader views on federalism,172 separation of powers,173 and
statutory interpretation.174 One of the main sources of Justice Scalia’s impact on environmental
law is his jurisprudence on the topic of standing.175 In his influential majority opinion in the 1992
case Lujan v. Defenders of Wildlife, Justice Scalia clarified limits on when environmental groups
and other groups have standing to challenge or enforce laws or regulations in federal court.176
Building on earlier cases,177 the principles set forth by Justice Scalia in Lujan require plaintiff
groups to make specific allegations establishing that at least one identified member has suffered
or would suffer concrete and particularized injury caused by, or fairly traceable to, the act
challenged in the litigation, and that this injury is redressable by the court,178 limiting the impact
of citizen-suit provisions in several environmental laws. Justice Scalia also shaped the
relationship between environmental law and property rights with his decisions defining regulatory
takings under the Fifth Amendment of the U.S. Constitution.179 In Lucas v. South Carolina Coast
Council,180 Justice Scalia articulated a rule that, when a challenged regulation affecting land use
(not otherwise grounded in background principles of nuisance law181) denies a landowner all
“economically viable use of his land,” it amounts to a government taking of the property—akin to
an exercise of eminent domain—and the Fifth Amendment requires just compensation.182
169
Johnson, 135 S. Ct. at 2560.
CRS Legislative Attorney (name redacted) authored this section of the report.
171
See, e.g., Tirrill Moore, Environmental Law After Scalia: Assessing the Environmental Legacies of Potential
Nominees, GEORGETOWN ENVTL. L. REV. (March 7, 2016), available at http://gelr.org/2016/03/07/environmental-lawafter-scalia-assessing-the-environmental-legacies-of-potential-nominees-georgetown-environmental-law-review/
(“Justice Scalia played a crucial role in shaping environmental law discourse.”); Jeremy P. Jacobs, How Scalia
Reshaped Environmental Law, E&E NEWS (February 15, 2016), available at http://www.eenews.net/stories/
1060032404.
172
See infra “Federalism.”
173
See infra “Separation of Powers.”
174
See supra “Statutory Interpretation.”
175
For more on the discussion of Justice Scalia’s views on standing, see supra “Administrative Law.”
176
504 U.S. 555, 562 (1992) (“[W]hen the plaintiff is not himself the object of the government action or inaction he
challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”) (internal citation
omitted). Lujan held that the plaintiff environmental group had not established actual or imminent injury to challenge a
rule limiting the geographic scope of applicability of the Endangered Species Act. See generally id.
177
See, e.g., id. at 560-62 (citing, among other cases, Lujan v. National Wildlife Federation, 497 U.S. 871, 883-89
(1990); Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976); Sierra Club v. Morton, 405 U.S. 727,
740-41, n.16 (1972)).
178
Id. at 559-71; see also Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (Scalia, J.) (applying Lujan).
179
U.S. CONST. amend. V.
180
505 U.S. 1003 (1992).
181
See id. at 1020-24, 1027-32.
182
Id. at 1017-19. See infra “Takings.”
170
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
With respect to specific environmental issues, Justice Scalia issued decisions that served to
narrow the scope or reach of federal environmental regulatory efforts on a number of notable
occasions.183 For example, he authored the plurality decision in Rapanos v. United States,184 the
latest in a series of Supreme Court cases explaining the extent of federal jurisdiction over
wetlands and streams under the Clean Water Act (CWA).185 Justice Scalia’s plurality opinion set
forth a test requiring a “continuous surface connection” to “waters of the United States,” which he
further characterized as “relatively permanent bod[ies] of water connected to traditional interstate
navigable waters.”186 Since Rapanos, however, lower courts have looked primarily to the
“significant nexus” test set forth by Justice Kennedy in his concurrence.187 Justice Scalia also
rejected an environmental group’s interpretation of the CWA in Entergy Corp. v. Riverkeeper,
affirming the Environmental Protection Agency’s (EPA’s) reliance on cost-benefit analysis in
setting national performance standards for power plant cooling water intake structures and
providing for cost-based variances.188 On the other hand, Justice Scalia agreed with
environmental plaintiffs in other cases, such as City of Chicago v. Environmental Defense Fund,
in which the Court interpreted the Resource Conservation and Recovery Act (RCRA) and found
that municipal waste combustion ash was hazardous waste subject to regulation.189
On air and climate issues in particular, Justice Scalia often, but not always, expressed skepticism
of EPA regulation. In 2001, he wrote the majority opinion in Whitman v. American Trucking
Associations, which agreed with EPA’s interpretation that the Clean Air Act (CAA) did not permit
the agency to consider implementation costs in setting National Ambient Air Quality Standards
(NAAQS).190 Justice Scalia disagreed with EPA in some later cases, including the 2015 decision
in Michigan v. EPA, which remanded the agency’s rule on Mercury and Air Toxics Standards
(MATS) for power plants.191 Justice Scalia wrote for the Court that a provision of the CAA
183
See, e.g., Dan Farber, Justice Scalia and Environmental Law, THE BERKELEY BLOG (February 15, 2016), available
at http://blogs.berkeley.edu/2016/02/17/justice-scalia-and-environmental-law/ (“The Chevron test says that an agency’s
interpretation of a statute is entitled to deference.…There are only three cases in which the Supreme Court has ever
held that a statute’s interpretation of an ambiguous statute was unreasonable, all three written by Scalia: Whitman v.
American Trucking, [531 U.S. 457 (2001),] UARG v. EPA, [134 S. Ct. 2427 (2014),] and Michigan v. EPA [,135 S. Ct.
2699 (2015)]. In all three cases, the ‘unreasonable’ agency was EPA.”).
184
547 U.S. 715 (2006); see also generally Solid Waste Agency of Northern Cook Cty. (SWANCC) v. Army Corps of
Eng’rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); CRS Report
RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond, by (name redacted) and (name re
dacted) . (Legal questions on this report can be referred to (name redacted).)
185
33 U.S.C. §§1311, 1342, 1362.
186
Rapanos, 547 U.S. at 742, 757 (Scalia, J., plurality op.) (remanding for further factual determinations).
187
See, e.g., United States v. Donovan, 661 F.3d 174, 180-84 (3d Cir. 2011); United States v. Bailey, 571 F.3d 791,
797-800 (8th Cir. 2009); United States v. Johnson, 467 F.3d 56, 66 (1 st Cir. 2006). A regulation to implement Rapanos,
issued jointly by the Environmental Protection Agency (EPA) and Army Corps of Engineers in 2015, was stayed in the
midst of litigation at the time of Justice Scalia’s passing. See CRS Legal Sidebar WSLG1503, Sixth Circuit Will Hear
Challenges to EPA’s Clean Water Act Jurisdiction (“Waters of the United States”) Rule, but Litigation Uncertainties
Remain Unresolved, by (name redacted)
. In addition, the Supreme Court’s 2015 term docket includes Army Corps
of Engineers v. Hawkes Co., No. 15-290, a case concerning whether property owners can sue over CWA jurisdictional
determinations by EPA or the Army Corps of Engineers. For background on Hawkes, see CRS Legal Sidebar
WSLG1250, Circuit Courts Split Over Availability of Judicial Review After a Clean Water Act “Jurisdictional
Determination”, by (name redacted)
. (Questions on this Sidebar can be referred to (name redacted).)
188
556 U.S. 208, 217-27 (2009) (interpreting CWA language, including “best technology available for minimizing
adverse environmental impact”).
189
511 U.S. 328, 331-39 (1994).
190
531 U.S. 457, 464-72 (2001). The Court nevertheless vacated and remanded EPA’s NAAQS, holding that EPA’s
interpretation of the interaction between two subparts of the CAA was unreasonable. Id. at 476-86.
191
576 U.S.—, 135 S. Ct. 2699, 2706-12 (2015). After the Supreme Court’s decision, the U.S. Court of Appeals for the
(continued...)
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
authorizing regulation of hazardous air pollutants from power plants only where “appropriate and
necessary” did require threshold consideration of costs.192 On climate, Justice Scalia dissented
from the 2005 decision in Massachusetts v. EPA, which held, by a vote of 5-4, that greenhouse
gases (GHGs) were air pollutants under the CAA,193 but later joined the majority in American
Electric Power (AEP) v. Connecticut, which held that EPA’s authority under the CAA to set limits
on GHG emissions displaced common-law nuisance lawsuits seeking to impose such limits.194 In
2014, Justice Scalia authored the majority opinion in Utility Air Regulatory Group (UARG) v.
EPA, which upheld EPA’s authority to regulate GHGs but struck down part of its stationary source
permitting rule.195 In doing the latter, Justice Scalia appeared to scale back deference to agencies:
EPA’s interpretation is also unreasonable because it would bring about an enormous and
transformative expansion in EPA’s regulatory authority without clear congressional
authorization. When an agency claims to discover in a long-extant statute an unheralded
power to regulate “a significant portion of the American economy,” we typically greet its
announcement with a measure of skepticism. We expect Congress to speak clearly if it
wishes to assign to an agency decisions of vast “economic and political significance.”196
Notably, one of Justice Scalia’s last votes on the Supreme Court was to join a 5-4 majority to stay,
or suspend, the Clean Power Plan, EPA’s rule to regulate GHG emissions from existing power
plants, which is currently being litigated in consolidated cases before the U.S. Court of Appeals
for the District of Columbia Circuit.197 Justice Scalia’s language from UARG excerpted above has
featured prominently in many of the briefs filed by petitioners challenging the rule.198 The
Supreme Court’s stay was widely interpreted as a sign that the rule would face skepticism if the
Court were to review the decision of the appeals court, but with Justice Scalia’s passing, some
perceive the rule’s prospects to have changed.199
(...continued)
District of Columbia Circuit remanded the rule to the agency without vacating it. White Stallion Energy Ctr., LLC v.
EPA, No. 12-1100, 2015 U.S. App. LEXIS 21819 (D.C. Cir., December 15, 2015) (unpub. per curiam order).
192
135 S. Ct. at 2707-08 (“One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of
dollars in economic costs in return for a few dollars in health or environmental benefits.... There are undoubtedly
settings in which the phrase ‘appropriate and necessary’ does not encompass cost. But this is not one of them.”)
193
549 U.S. 497, 549 (2001) (Scalia, J., dissenting).
194
564 U.S. 410, 423-29 (2011).
195
134 S. Ct. 2427, 2438-49 (2014).
196
Id. at 2444.
197
See West Virginia v. EPA, No. 15A773 (February 9, 2016), available at http://www.supremecourt.gov/orders/
courtorders/020916zr_21p3.pdf. For more information on the Clean Power Plan rule and on the Supreme Court’s stay
of the rule for the duration of the litigation challenging the rule, see CRS Report R44341, EPA’s Clean Power Plan for
Existing Power Plants: Frequently Asked Questions, by (name redacte d) et al. , and CRS Legal Sidebar WSLG1489,
UPDATED: Circuit Court Denies Stay of Clean Power Plan; States Ask Supreme Court to Step In (Part 2), by
(name redacted)
.
198
See, e.g., Opening Br. of Pet’rs. on Core Legal Issues, Opening Br. of Intervenors, Br. for Members of Cong. as
Amici Curiae in Supp. of Pet’rs., West Virginia, et al. v. EPA, No. 15-1363 (filed February 23, 2016).
199
See, e.g., Lawrence Hurley, Scalia’s Death Boosts Legal Chances for Obama’s Climate Plan, REUTERS (February
16, 2016), available at http://www.reuters.com/article/us-usa-court-carbon-idUSKCN0VP0FH; Anthony Lacey &
Jeremy Bernstein, Scalia’s Death Creates Uncertainty for Pending EPA, Clean Energy Cases, INSIDEEPA (February
15, 2016) (quoting legal observers), available at http://insideepa.com/daily-news/scalias-death-creates-uncertaintypending-epa-clean-energy-cases.
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Federalism200
Justice Scalia viewed federalism, or the legal principles governing the division of power between
the states and the national government, to be “one of the Constitution’s structural protections of
liberty.”201 Perhaps his greatest contribution to the Court’s federalism jurisprudence was his
majority opinion in Printz v. United States.202 Printz, in conjunction with an earlier decision in
New York v. United States,203 marked a sharp change of course in the Court’s interpretation of the
Tenth Amendment—a fundamental constitutional underpinning of federalism that reserves those
powers not delegated to the federal government to the states, or to the people.204 In Printz, the
Court struck down provisions of the Brady Handgun Violence Prevention Act that required state
and local law enforcement officers to conduct background checks on prospective gun
purchasers.205 Immediately prior to New York and Printz, the Court had generally relied on
structural safeguards and the political process to limit Congress’s exercise of its commerce power
vis-à-vis the states, as opposed to judicial review.206 Justice Scalia, writing for the majority,
solidified the anti-commandeering principles of the Tenth Amendment that continue to govern
today by concluding “categorically” that the federal government may not compel state officials to
“enact or administer a federal regulatory program.”207
However, Justice Scalia’s view of the barriers to the exercise of federal power erected by the
Constitution’s “system of dual sovereignty”208 was not always “categorical.”209 For example,
while Justice Scalia joined the Court’s landmark rulings restricting the scope of the commerce
power in United States v. Lopez210 and Morrison v. United States,211 he did not find, as Justice
200
CRS Legislative Attorney (name redacted) author
ed this section of the report.
Printz v. United States, 521 U.S. 898, 921 (1997). It is perhaps unsurprising then, that Justice Scalia’s federalism
jurisprudence at times reflected his views on the other great structural protection of liberty, the separation of powers.
Id. (“‘Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent
the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse from either front.’”) (quoting Gregory v. Ashcroft, 501 U.S. 452,
458 (1991)). Justice Scalia has described the American concept of federalism as a “form of government midway
between two extremes. At one extreme, the autonomy, the disunity, the conflict of independent states; at the other, the
uniformity the inflexibility, the monotony of one centralized government. Federalism is meant to be a compromise
between the two.” Antonin Scalia, The Two Faces of Federalism, 6 HARV. J. L. & POL’Y 19, 19 (1982).
202
See Respondent: The Constitutional and the Jurisprudence of Justice Scalia, 47 ST. LOUIS L.J. 753, 769 (2003).
203
505 U.S. 144, 175-77 (1992) (invalidating provisions of the Low-Level Radioactive Waste Policy Amendments Act
of 1985 that instructed states to “take title” to nuclear waste within their borders on the grounds that Congress may not
commandeer state regulatory processes by ordering states to enact or administer a federal regulatory program).
204
U.S. CONST. amend. X.
205
Printz, 521 U.S. at 933 (quoting New York, 505 U.S. at 188). In a related context, Justice Scalia voted with the
majority in South Dakota v. Dole, in declining to find a condition on a highway grant that required states to maintain a
drinking age of twenty-one to be unconstitutionally coercive. See 483 U.S. 203, 211-12 (1987). However, in National
Federation of Independent Business v. Sebelius, Justice Scalia concurred with the judgment of the Court that the
Affordable Care Act’s Medicaid provision violates the Tenth Amendment by threatening states with the loss of their
existing Medicaid funding if they decline to comply with the expansion. See --- U.S. ---, 132 S. Ct. 2566, 2666-67
(2012) (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting) (noting that seven members of the Court agree that the
Medicaid Expansion is unconstitutional).
206
See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985) (“[T]he principal means chosen by the
Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself.”).
207
Printz, 521 U.S. at 933 (quoting New York v. United States, 505 U.S. at 188).
208
Id. at 935.
209
Id. at 933.
210
514 U.S. 549 (1995).
201
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Thomas did in dissent, that Congress violated federalism principles in Gonzales v. Raich, a case
in which the Court held that the Commerce Clause empowered Congress to prohibit the local
cultivation and use of marijuana even though such activity was permitted by state law.212
Similarly, in Branch v. Smith, Justice Scalia—writing for the majority—suggested that the Court’s
anti-commandeering principles apply less stringently when the Constitution “expressly” grants
Congress powers over the states as it does under the “Times, Places and Manner” Clause of
Article I, Section 4,213 which explicitly makes state control over certain aspects of congressional
elections subject to alteration by Congress. Justice Scalia was also unwilling to accept what he
viewed as “faux federalism” arguments in City of Arlington v. FCC, an administrative law case in
which it was argued that the FCC had “asserted jurisdiction over matters of traditional state and
local concern.”214 Rather than adopting the federalism based arguments put forward by
respondents, Justice Scalia viewed the case as one to be decided on principles of statutory
interpretation.
Scalia’s interpretation of the dormant Commerce Clause and the Eleventh Amendment’s
provisions regarding state sovereign immunity provides additional insight into his views on
federalism. The Court has held that the Commerce Clause represents not only a grant of authority
to Congress, but also a prohibition on states “imposing excessive burdens on interstate commerce
without congressional approval.”215 This implied “negative command” is known as the dormant
or negative Commerce Clause. Justice Scalia viewed the doctrine as a “judicial fraud” and a
“judge-invented rule.”216 Relying on a strict textualist interpretation, he recently described his
view in a dissenting opinion in Comptroller of the Treasury v. Wynne, asserting that “[t]he
fundamental problem with our negative Commerce Clause cases is that the Constitution does not
contain a negative Commerce Clause.”217 In contrast, the absence of a clear textual command did
not influence his interpretation of the Eleventh Amendment, which provides that the “Judicial
power of the United States shall not ... extend to any suit ... commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.”218 Justice Scalia has suggested that the Eleventh Amendment should be understood “not so
much for what it says, but for the presupposition of our constitutional structure which it
(...continued)
211
529 U.S. 598 (2000).
212
545 U.S. 1 (2005). Id. at 65-66 (Thomas, J., dissenting) (“Even if Congress may regulate purely intrastate activity
when essential to exercising some enumerated power.... Congress may not use its incidental authority to subvert basic
principles of federalism and dual sovereignty.... Here, Congress has encroached on States’ traditional police powers to
define the criminal law and to protect the health, safety, and welfare of their citizens.”) (internal citations omitted).
213
538 U.S. 254, 280 (2003).
214
569 U.S.—, 133 S. Ct. 1863, 1873 (2013) (“But this case has nothing to do with federalism. Section 332(c)(7)(B)(ii)
explicitly supplants state authority by requiring zoning authorities to render a decision ‘within a reasonable period of
time,’ and the meaning of that phrase is indisputably a question of federal law.”).
215
Comptroller of the Treasury v. Wynne, 575 U.S.—, 135 S. Ct. 1787, 1794 (2015) (“Although the Clause is framed
as a positive grant of power to Congress, ‘we have consistently held this language to contain a further, negative
command, known as the dormant Commerce Clause, prohibiting certain state taxation even when Congress has failed
to legislate on the subject.”) (citing Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995)).
216
Id. at 1807-08 (Scalia, J., dissenting). See also Tyler Pipe Indus. v. Wash. State Dep’t of Revenue, 483 U.S. 232
(1987) (Scalia, J., dissenting) (“The pre-emption of state legislation would automatically follow, of course, if the grant
of power to Congress to regulate interstate commerce were exclusive.... However, unlike the District Clause, which
empowers Congress ‘To exercise exclusive Legislation,’ Art. I, § 8, cl. 17, the language of the Commerce Clause gives
no indication of exclusivity.”).
217
Wynne, 135 S. Ct. at 1808.
218
U.S. CONST. amend. XI.
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
confirms.”219 Accordingly, having acknowledged the Amendment’s “precise terms” bar only suits
against a state by a citizen of another state or a foreign state, Justice Scalia interpreted the
background principles animating the Amendment to immunize states from a wide array of
lawsuits, including claims brought by citizens of a state against that state.220 Relatedly, Justice
Scalia joined in the Court’s often narrow majorities that limited Congress’s ability to abrogate
state sovereign immunity221 and dissented in other cases where the Court upheld congressional
repeals of state immunity from suits,222 defending a relatively broad principle that states generally
cannot be sued absent consent.
Freedom of Religion223
Although Justice Scalia did not author many of the Court’s leading opinions in cases on religious
freedom, he wrote a number of concurring and dissenting opinions related to the Establishment
and the Free Exercise Clauses.224 In these opinions, he regularly noted the role of religion in the
history of the United States, particularly the role religion played in the lives of the Framers.225
The notion of separation of church and state, according to Justice Scalia, meant that the
government could not establish an official church, require church attendance, or demand financial
support for a church.226 However, under his view, the Establishment Clause did not extend so far
as to require that references to religion be extinguished from public life and did not preclude the
government from favoring religious practices.227 This understanding of the Establishment Clause
was reflected in his opinions across various lines of cases that the Court considered over the past
three decades, including school prayer, public displays of religious symbols, and private religious
expression in public fora.228
Early in his tenure—while the second most junior member of the Court—Justice Scalia authored
the majority opinion in what is widely considered the most significant constitutional religious
freedom case of his tenure on the Court: Employment Division, Department of Human Resources
of Oregon v. Smith.229 That landmark decision clarified the standard of the Free Exercise Clause,
219
Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). See also Pennsylvania v. Union Gas Co., 491
U.S. 1, 31 (1989) (Scalia, J., concurring) (“[T]he Eleventh Amendment was important not merely for what it said, but
for what it reflected....”).
220
Union Gas Co., 491 U.S. at 31.
221
See, e.g., Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996) (5-4 decision); Alden v. Maine, 527 U.S. 706 (1999) (54 decision); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 630 (1999) (5-4
decision); Coleman v. Court of Appeals, --- U.S. ---, 132 S. Ct. 1327 (2012).
222
See, e.g., Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 741 (2003) (Scalia, J., dissenting); Tennessee v. Lane,
541 U.S. 509, 554 (2004) (Scalia, J., dissenting).
223
CRS Legislative Attorney (name redacted) authored this section of the report.
224
See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757 (1995) (Scalia, J., opinion of the
Court); Edwards v. Aguillard, 482 U.S. 578, 610 (1987) (Scalia, J., dissenting); Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 557 (1993) (Scalia, J., concurring).
225
See Lee v. Weisman, 505 U.S. 577, 631 (1991) (Scalia, J., dissenting); McCreary Cty. v. ACLU, 545 U.S. 844, 885
(2005) (Scalia, J., dissenting).
226
See Lee, 505 U.S. at 631-36.
227
See McCreary Cty., 545 U.S. at 885-86 (“[Under] one model of the relationship between church and state ...
[r]eligion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America.”).
228
See Lee, 505 U.S. at 631 (Scalia, J., dissenting); McCreary Cty., 545 U.S. at 885 (Scalia, J., dissenting); Van Orden
v. Perry, 545 U.S. 677, 692 (2005) (Scalia, J., concurring); Capitol Square, 515 U.S. at 757.
229
494 U.S. 872 (1990).
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
effectively lowering the constitutional barrier to rational basis review and barring religious
objection as a basis for exemption from neutral laws of general applicability.230 Historically, the
Court had required that the government demonstrate a compelling interest in any action that
would interfere with religious exercise.231 The majority opinion authored by Justice Scalia in
Smith explained, however, that the Court “never held that an individual’s religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate.”232
Justice Scalia’s opinion in Smith was the impetus for Congress’s enactment of the Religious
Freedom Restoration Act (RFRA), which provides heightened protection for religious exercise by
statute.233 Under RFRA, the federal government cannot substantially burden religious exercise
unless it has a compelling interest and uses the least restrictive means to achieve that
interest.234 In recent years, RFRA and its implementation in light of Smith have driven discussions
about freedom of religious exercise, including that in the Court’s latest landmark religion case:
Burwell v. Hobby Lobby Stores, Inc.235 The majority in Hobby Lobby (joined by Justice Scalia)
held that closely held corporations could claim protection under RFRA, allowing private
businesses to seek accommodation or exemption from laws of general applicability if they
satisfied the statutory requirements of RFRA.236 That opinion appeared to contrast with Justice
Scalia’s explanation of the holding in Smith, in which he wrote that religious objections from
generally applicable laws generally were not protected by the First Amendment.237 Justice Scalia
did not write separately to address the distinction between the holdings, but the cases were
decided under different protections for religious freedom—Smith as a matter of the Free Exercise
Clause and Hobby Lobby as a matter of statutory protection under RFRA. Hobby Lobby has
reignited the debates that occurred following Smith, particularly those involving questions about
the extent to which a person’s religion may impact a successful claim for exemption from a
neutral law of general applicability.238 Looking forward, another potentially important decision is
pending before the Court in its current term, Zubik v. Burwell—a case providing the opportunity
for the Court to further clarify the meaning of a “substantial burden” on religious exercise and the
extent to which religious objectors may avoid compliance with laws of general applicability
230
Id.
See Wisconsin v. Yoder, 406 U.S. 205 (1972).
232
Smith, 494 U.S. at 878-79.
233
P.L. 103-141, 107 Stat. 1488 (November 16, 1993) (codified, as amended, at 42 U.S.C. §2000bb et seq.). RFRA
originally provided protection from burdens imposed by federal, state, and local government actions, but the Supreme
Court ruled in 1997 that its application to state and local governments was unconstitutional on federalism grounds
under the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 511 (1997).
234
42 U.S.C. §2000bb-1.
235
--- U.S. ---, 134 S.Ct. 2751 (2014) (holding that closely held private corporations owned by individuals with
religious objections to the contraceptive coverage requirement under the Affordable Care Act qualified as persons
eligible for RFRA protection against substantial burdens on their religious exercise).
236
Hobby Lobby, 134 S. Ct. at 2759.
237
Smith, 494 U.S. at 878-79.
238
See also CRS Report R43654, Free Exercise of Religion by Closely Held Corporations: Implications of Burwell v.
Hobby Lobby Stores, Inc., by (name redacted). These questions have arisen across a variety of issues and have been of
particular interest related to the Court’s recognition of a federal right to same-sex marriage, including the resulting
implications for nondiscrimination requirements in civil rights law and requirements for recipients of federal funding.
See CRS Report R44244, Recognition of Same-Sex Marriage: Implications for Religious Objections, by (name re
dacted) and (name redacted).
231
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
under RFRA.239 The case is expected to clarify the state of protections for religious exercise and,
by extension, the legacy of Justice Scalia’s opinion in Smith.
Freedom of Speech240
Perhaps no area of law was as greatly affected by Justice Antonin Scalia’s tenure on the Court as
the case law regarding freedom of speech. In the era prior to Justice Scalia’s appointment, the
Supreme Court, led by jurists like Justice William Brennan, broadened its recognition of the types
of speech that the freedom of speech clause of the First Amendment protects from government
restriction.241 During this time, the Court ended restrictions on speech that advocated the
overthrow of the government;242 protected depictions of sex and indecency from some, though
not all, government regulation;243 and expanded the right to criticize the government.244 This
expansion of free speech rights by the Warren and Burger Courts often prompted dissenting
Justices to argue, in their opinions, that free speech interests should be subordinate to the
government’s interests in protecting national security,245 imposing social order,246 and regulating
public morality.247 Justice Scalia, in keeping with his rules-based approach to constitutional
jurisprudence,248 embraced an approach to the First Amendment somewhat different from his
predecessors. Justice Scalia was generally skeptical of the constitutionality of speech restrictions
that could be interpreted as efforts by the government to prescribe “orthodoxy”—that is, instances
where the government “pick[s] and choose[s] among” the ideas and viewpoints to favor and
disfavor.249 And Justice Scalia’s view that free speech interests generally do not yield to
countervailing interests of the government has increasingly garnered the support of majorities on
the Court, as the Roberts Court has relied on the First Amendment to strike down several federal
and state laws on free speech grounds.250
239
See Zubik v. Burwell, No. 14-1418, 2015 U.S. LEXIS 7030, 136 S. Ct. 444 (November 6, 2015).
CRS Legislative Attorneys (name redacted) and (name redacted) coauthored this section of the report.
241
See generally LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 322-30, 339-41 (2000).
242
See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (“[T]he constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.”).
243
See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978) (upholding broadcast indecency restrictions); Stanley v.
Georgia, 394 U.S. 557, 568 (1969) (“[T]he First and Fourteenth Amendments prohibit making mere private possession
of obscene material a crime.”).
244
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (“[D]ebate on public issues should be
uninhibited, robust, and wide-open, and ... it may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.”).
245
See, e.g., New York Times Co. v. United States, 403 U.S. 713, 757 (1971) (Harlan, J., dissenting) (arguing that the
judiciary should not “redetermine for itself the probable impact of disclosure [of the Pentagon Papers] on the national
security”).
246
See, e.g., Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting) (describing the plaintiff’s actions as
an “absurd and immature antic” that constituted “conduct” subject to state regulation).
247
See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 82 (1963) (Harlan, J., dissenting) (arguing that the majority’s
invalidation of a state commission empowered to suppress the circulation of certain “objectionable” publications due to
their alleged obscenity, indecency, or impure language “cut into [the state’s] effort ... to get at the juvenile delinquency
problem....”).
248
See supra “Role of the Judiciary.”
249
See Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 44 (1992).
250
See, e.g., Ken Starr, President, Baylor Univ., Address at the Pepperdine Judicial Law Clerk Institute (March 18,
(continued...)
240
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Justice Scalia’s concerns with the regulation of speech based upon governmental disapproval of
its message are illustrated by his majority opinion in R.A.V. v. St. Paul.251 In R.A.V., the Court
invalidated a city ordinance that prohibited certain fighting words, a category of speech long
known to be proscribable under the First Amendment.252 The ordinance applied only to fighting
words that aroused anger on the basis of race, religion, or gender.253 It was the singling out of
fighting words with a particular message for special prohibition that Justice Scalia and the Court
found objectionable. Under the challenged law, “One could hold up a sign saying, for example,
that all ‘anti-Catholic bigots’ are misbegotten; but not that ‘all papists’ are, for that would insult
and provoke violence ‘on the basis of religion.’”254 To quote a line from R.A.V. that perhaps
embodies Justice Scalia’s general understanding of the government’s limited ability to burden
particular content: “[The government] has no ... authority to license one side of a debate to fight
freestyle, while requiring the other to follow Marquis of Queensberry rules,”255 even within a
category of speech generally unprotected by the First Amendment. For Justice Scalia, such
selectivity raises the specter of the government attempting to impose ideological orthodoxy,
which the Constitution does not permit.256
Justice Scalia’s approach to the issue of campaign finance can be seen to reflect his general
approach to free speech issues, rejecting most government regulations as being violative of the
First Amendment because such regulations are based on the identity of the speaker, or limit the
amount of political speech in a campaign, without serving the governmental interest of avoiding
candidate corruption. In particular, he cautioned of the dangers of “incumbents’ writing ... the
rules of political debate,” observing that the “first instinct of power is the retention of power.”257
In Austin v. Michigan Chamber of Commerce,258 the Supreme Court upheld the constitutionality
of a state law that restricted corporate campaign expenditures. Foreshadowing a landmark
decision by the Court twenty years later in Citizens United v. Federal Election Commission,259
Justice Scalia dissented. Characterizing Austin as permitting the political speech of corporations
to be regulated because state law provides them with “special advantages” by limiting the
personal liability of individuals who form such associations, he argued that doing so was
“incompatible with the absolutely central truth of the First Amendment: that government cannot
(...continued)
2011) (describing the Roberts Court as the “most free speech court in American history”); Tony Mauro, Roberts Court
Extends Line of Permissive First Amendment Rulings in Video Game Case, AM. LAW DAILY (June 28, 2011), available
at http:// amlawdaily.typepad.com/amlawdaily/2011/06/scotusfirstamendmentvideo.html (quoting Steve Shapiro, the
American Civil Liberties Union Legal Director, as saying “This is a Court that takes an expansive view of the First
Amendment. It is particularly sensitive to any claim that the government is using its power to censor unpopular
speakers or unpopular speech.”). But see Erwin Chemerinsky, Not a Free Speech Court, 53 ARIZ. L. REV. 724, 734
(2011) (arguing that the Roberts Court’s campaign finance decisions do not reflect a commitment to free speech).
251
505 U.S. 377 (1992).
252
Id. at 381.
253
Id. at 391.
254
Id. at 391-92
255
Id. at 392.
256
Id. at 390 (“The First Amendment does not permit [the government] to impose special prohibitions on those
speakers who express views on disfavored subjects.”).
257
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 263 (2003) (Scalia, J., concurring in part and dissenting in part).
258
494 U.S. 652 (1990), overruled by Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010). For further
discussion, see CRS Report R43719, Campaign Finance: Constitutionality of Limits on Contributions and
Expenditures, by (name redacted) .
259
558 U.S. 310 (2010).
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be trusted to assure, through censorship, the ‘fairness’ of political debate.”260 Years later, in a
concurrence to a pivotal case narrowing the scope of a federal law similarly restricting corporate
campaign expenditures, Justice Scalia reiterated his criticism of Austin. In Federal Election
Commission v. Wisconsin Right to Life, Inc.,261 he characterized Austin as “wrongly decided,”
with a “flawed rationale,” and expressly rejected the principle that political speech could be
restricted “based on the corporate identity of the speaker.”262 When the Court issued its landmark
2010 ruling in Citizens United, the influence of Justice Scalia seemed clear. Quoting from his
earlier opinions, the majority of the Court concluded that Austin “was a significant departure from
ancient First Amendment principles,”263 and expressly overruled it.264
On the other hand, in a notable exception to his general disapproval of campaign finance
regulation, Justice Scalia supported disclosure requirements. In McIntyre v. Ohio Elections
Commission,265 where the Court struck down a state law prohibiting the distribution of
anonymous campaign literature, Justice Scalia issued a dissent criticizing the majority for
“discover[ing] a hitherto unknown right-to-be-unknown while engaging in electoral politics.”266
Anonymity, he wrote, “facilitates wrong by eliminating accountability, which is ordinarily the
very purpose of the anonymity.”267 Several years later, in Doe v. Reed,268 he continued his support
for disclosure in the context of elections. In Doe, the Court upheld a state law requiring that all
public records, including signatures on referendum petitions, be made available for public
inspection and copying. In an often quoted passage from his concurrence in that case, Justice
Scalia announced:
Requiring people to stand up in public for their political acts fosters civic courage,
without which democracy is doomed. For my part, I do not look forward to a society
which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the
direct democracy of initiative and referendum hidden from public scrutiny and protected
from the accountability of criticism. This does not resemble the Home of the Brave. 269
Despite his approval of disclosure requirements in the elections context, however, Justice Scalia’s
understanding of the freedom of speech clause of the First Amendment, more generally, made
him skeptical of many restrictions on the content of speech, regardless of the political views
expressed, arguably putting his jurisprudence at odds with his personal opinions in some cases.270
260
Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 680 (1990) (Scalia, J., dissenting).
551 U.S. 449 (2007).
262
Id. at 490, 489 (Scalia, J., concurring in part and concurring in judgment).
263
Citizens United, 558 U.S. at 319 (quoting Wis. Right to Life, Inc., 551 U.S. at 490 (Scalia, J., concurring in part and
concurring in judgment)).
264
See id. at 365.
265
514 U.S. 334 (1995).
266
Id. at 371 (Scalia, J., dissenting).
267
Id. at 385.
268
561 U.S. 186 (2010).
269
Id. at 228 (Scalia, J., concurring).
270
Justice Scalia’s skepticism of the permissibility of content-based restrictions on speech did, at times, produce results
that aligned with views perceived to be politically conservative. For example, Justice Scalia repeatedly argued against
the constitutionality of laws that restricted speech outside of abortion clinics. See Hill v. Colorado, 530 U.S. 703, 741
(2000) (Scalia, J., dissenting); McCullen v. Coakley, --- U.S. ---, 134 S. Ct. 2518, 2541 (2014) (Scalia, J., concurring).
In both cases, the majority had determined that the restrictions at issue were not content-based; however, Justice Scalia
disagreed. Justice Scalia believed that the restrictions were targeted at speech about abortion, particularly at speech
opposing abortion, and, therefore, would have required the Court to apply strict scrutiny to strike down the restrictions.
Hill, 530 U.S. at 748 (Scalia, J., dissenting) (“In sum, it blinks reality to regard this statute, in its application to oral
(continued...)
261
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Perhaps most notably, Justice Scalia voted with the majority in Texas v. Johnson, a case striking
down a law that prohibited the burning of the American flag.271 Years later, when reflecting on his
vote in that case, he said, in typically colorful fashion: “If it was up to me, if I were king, I would
take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”272
Nonetheless, for Justice Scalia, the First Amendment’s protections for freedom of speech
necessarily, even particularly, encompassed speech critical of the government, compelling his
vote in Johnson.273 Moreover, in the most recent freedom of speech majority opinion that he
wrote, Justice Scalia’s opinion provides additional evidence of his overarching skepticism of the
constitutionality of government attempts to single out disfavored content for special restriction. In
Brown v. Entertainment Merchants Association, he rejected California’s attempt to regulate
violent video games in the same way that governments are permitted to regulate material that is
obscene as to minors.274 After recounting some of the more shocking images that might be
encountered by a child playing one of these games, which Justice Alito had pointed to in a
dissenting opinion, Justice Scalia wrote:
To what end does he relate this?.... Who knows?.... But it does arouse the reader’s ire,
and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice
Alito’s argument highlights the precise danger posed by the California Act: that the ideas
expressed by speech—whether it be violence, or gore, or racism—and not its objective
effects, may be the real reason for governmental proscription. 275
Nonetheless, Justice Scalia was not a First Amendment absolutist and did recognize the existence
of limits to First Amendment protections. For example, Justice Scalia would have held, in
contrast to the majority of the Court, that the First Amendment does not protect commercial
Internet pornography;276 public displays of nudity;277 or adult television channels that are
“primarily dedicated to sexually-oriented programming.”278 Justice Scalia also recognized the
government’s authority to regulate commercial speech more easily than other categories of
speech.279 Moreover, while Justice Scalia was skeptical of government efforts to restrict speech
(...continued)
communications, as anything other than a content-based restriction upon speech in the public forum. As such, it must
survive that stringent mode of constitutional analysis our cases refer to as ‘strict scrutiny’”); McCullen, 134 S. Ct. at
2548 (Scalia, J., concurring). Justice Scalia also regularly joined opinions defending the rights of religious groups to
have equal access to public forums to engage in religious expression. See, e.g., Lamb’s Chapel v. Ctr. Moriches Union
Free Sch. Dist., 508 U.S. 384, 390 (1993); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 823
(1995); Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 707 (2010) (Alito, J., dissenting,
joined by Roberts, C.J., & Scalia & Thomas, JJ.).
271
49 U.S. 397 (1989).
272
Jamie Gumbrecht, Even in Dissent, Scalia Stirs Controversy, CNN (July 18, 2012), available at
http://www.cnn.com/2012/07/18/justice/antonin-scalia-profile/.
273
Adam Liptak, Scalia Says He Had ‘No Falling Out’ With the Chief Justice, NY TIMES (July 19, 2012), available at
http://www.nytimes.com/2012/07/19/us/politics/justice-scalia-says-he-had-no-falling-out-with-chief-justiceroberts.html (“However, we have a First Amendment which says that the right of free speech shall not be abridged.
And it is addressed, in particular, to speech critical of the government.”).
274
Brown v. En’t Merch. Ass’n, 564 U.S. 786, 131 S. Ct. 2729 (2011).
275
Id., 131 S. Ct. at 2738.
276
See Ashcroft v. ACLU, 542 U.S. 656, 676 (2004) (Scalia, J., dissenting).
277
See Barnes v. Glen Theatre, 501 U.S. 560, 573 (1991) (Scalia, J., concurring).
278
See United States v. Playboy Entm’t Group, 529 U.S. 803, 832 (2000) (Scalia, J., dissenting).
279
Bd. of Trs. v. Fox, 492 U.S. 469 (1989) (Scalia, J.) (holding that where the government seeks to regulate
commercial speech the restriction need not be the least-restrictive means for achieving the government’s legitimate
ends).
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by private individuals, he broadly defended the government’s ability to speak through its power to
decide what speech to fund.280 In addition, Justice Scalia argued for the government having broad
powers to control speech within public institutions, including speech by public employees281 and
speech by prisoners.282 In this sense, Justice Scalia’s views on freedom of speech clause were not
only influential on the Court, but also quite complex.
International and Foreign Law283
Justice Scalia was a vociferous critic of the use of contemporary foreign law and practice—
including practices so prevalent as to arguably reflect a customary international legal norm—to
inform understanding of the Constitution.284 He characterized this attitude as consistent with his
originalist philosophy. While Justice Scalia believed that English common law sources could shed
light on the meaning of constitutional provisions “written against the backdrop of 18th-century
English law and legal thought,”285 he considered the contemporary practice of foreign states to be
irrelevant to understanding the Constitution’s meaning at the time it was adopted.286 Using
contemporary foreign practice as an interpretative aid in applying the Constitution should be
280
See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 590 (1998) (Scalia, J., concurring); Johanns v. Livestock
Mktg. Ass’n, 544 U.S. 550, 562 (2005) (Scalia, J.); Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., --- U.S.
---, 133 S. Ct. 2321, 2332 (2013) (dissenting).
281
See Waters v. Churchill, 511 U.S. 661, 686 (1994) (Scalia, J., concurring).
282
See Beard v. Banks, 548 U.S. 521, 536 (2006) (Thomas, J., concurring joined by Scalia, J.).
283
CRS Legislative Attorney (name redacted) authored this section of the report.
284
Justice Scalia’s criticisms were often made in dissenting opinions to Supreme Court rulings that looked to foreign or
international legal authorities as interpretative aids in understanding the scope of protections afforded by the
Constitution. See, e.g., Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (majority opinion citing to both domestic and
foreign practice to support its conclusion that the imposition of the death penalty for juvenile offenders is
unconstitutional, and observing that in recent decades the Court had “referred to the laws of other countries and to
international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and
unusual punishments’”); Lawrence v. Texas, 539 U.S. 558, 576 (2003) (holding that a state law criminalizing same-sex
sodomy violated the Due Process Clause of the Fourteenth Amendment, and citing to jurisprudence of the European
Court of Human Rights as undermining the reasoning of an earlier Supreme Court decision upholding state sodomy
laws, to the extent that the earlier ruling “relied on values we share with a wider civilization”). For a scholarly defense
of the use of contemporary international legal sources to inform U.S. constitutional interpretation, see Sarah H.
Cleveland, Our International Constitution, 31 YALE J. INT’L L. 1 (2006) (arguing that such usage is appropriate in
certain contexts and consistent with historical practice).
285
Roper, 543 U.S. at 626 (Scalia, J., dissenting). See also, e.g., Crawford v. Washington, 541 U.S. 36 (2004)
(examining the English tradition prior to the U.S. Constitution’s ratification to discern the original meaning of the Sixth
Amendment’s Confrontation Clause); Hamdi v. Rumsfeld, 542 U.S. 507, 554-63 (2004) (Scalia, J., dissenting)
(examining the English tradition prior to the ratification of the U.S. Constitution and concluding that the government
could not indefinitely detain a U.S. citizen as an “enemy combatant,” unless it acted pursuant to the Suspension Clause
to suspend habeas corpus); INS v. St. Cyr, 533 U.S. 289, 342-43 (2001) (Scalia, J., dissenting) (interpreting the scope
of the Suspension Clause with reference to the common-law right of habeas corpus at the time of the Constitution’s
ratification, and discussing English judicial rulings from the Framing-era or earlier to discern the common-law rules).
In a 2005 public colloquy with his colleague, Justice Stephen Breyer, regarding their conflicting views on the use of
foreign law, Justice Scalia claimed he actually relied on foreign law more than any other Member of the Court, but that
his reliance was limited to “Old English law, because phrases [within the Constitution] like ‘due process,’ the ‘right of
confrontation’ and things of that sort were all taken from English law.” American University Washington College of
Law, Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer (January 13,
2005), available at http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/
1F2F7DC4757FD01E85256F890068E6E0?OpenDocument (hereinafter “Transcript of Discussion”).
286
Transcript of Discussion, supra note 285.
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“rejected out of hand,”287 according to Justice Scalia, not only because the U.S. system is
sufficiently distinct from foreign systems to make such comparative analysis unhelpful,288 but
also because it would be inappropriate for a U.S. court to set aside practices and traditions rooted
in the American experience for those favored by foreign states.289
Justice Scalia took a somewhat different view toward the relevance of foreign law and
international custom when interpreting U.S. statutes and treaties. In the case of treaty
interpretation, Justice Scalia opined that U.S. courts “can, and should, look to decisions of other
signatories when we interpret treaty provisions,” in part because these judgments may serve as
evidence of the treaty parties’ shared understanding of the agreement’s meaning.290 On matters of
statutory interpretation, Justice Scalia also indicated a belief that federal statutes should be
construed in a manner consistent with the law of nations whenever possible.291 In his partial
dissent in Hartford Fire Insurance Co. v. California, for example, Justice Scalia disagreed with
the majority’s interpretation of an antitrust statute as reaching conduct occurring within a foreign
state’s jurisdiction.292 Application of the statute in such a manner, according to Justice Scalia,
would have rendered it inconsistent with international legal principles of comity and respect for
the sovereign authority of other nations. Justice Scalia argued that, whenever feasible, “statutes
should not be interpreted to regulate foreign persons or conduct if that regulation would conflict
with principles of international law.”293
287
Roper, 543 U.S. at 624 (Scalia, J., dissenting).
Id. (arguing that “in many significant respects” most countries’ laws differ from those of the United States,
including with respect to the right to a jury trial and grand jury indictment, as well as the U.S. judicial rule excluding
consideration of evidence obtained through an illegal search and seizure, and such differences render comparative
constitutional analysis unhelpful); Hamdi, 542 U.S. at 575 n.5 (Scalia, J., dissenting) (objecting to the plurality’s view
that the indefinite detention of a U.S. citizen as an “enemy combatant” was constitutionally permissible absent the
suspension of habeas corpus, and claiming the fact“[t]hat captivity may be consistent with the principles of
international law does not prove that it also complies with the restrictions that the Constitution places on the American
Government’s treatment of its own citizens.”).
289
Roper, 543 U.S. at 624 (Scalia, J., dissenting) (arguing that, in holding that the Eighth Amendment prohibits the
imposition of the death penalty for juvenile offenders, the majority opinion relied on foreign practice “to set aside the
centuries-old American practice.... What these foreign sources ‘affirm,’ rather than repudiate, is the Justices’ own
notion of how the world ought to be, and their diktat that it shall be so henceforth in America”); Thompson v.
Oklahoma, 487 U.S. 815, 868 n. 4 (1988) (Scalia, J., dissenting) (criticizing the plurality’s reference to foreign practice
when it interpreted the meaning of the Eighth Amendment, and declaring that “[w]e must never forget that it is a
Constitution for the United States of America that we are expounding.... the views of other nations, however
enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the
Constitution”); Atkins v. Virginia, 536 U.S. 304, 347-48 (Scalia, J., dissenting) (criticizing the majority opinion’s
discussion of practices of the “world community” when interpreting the Eighth Amendment, and approvingly quoting
the earlier dissent in Thompson, supra); Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (describing the majority’s
discussion of foreign attitudes when assessing the constitutionality of a state law criminalizing same-sex sodomy as
“[d]angerous dicta ... since ‘this Court ... should not impose foreign moods, fads, or fashions on Americans’”).
290
Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (arguing that the majority’s
interpretation of the Warsaw Convention failed to give sufficient consideration to how the courts of other signatory
parties had interpreted the treaty).
291
See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814-15 (1993) (Scalia, J., dissenting) (approvingly citing
Chief Justice John Marshall’s statement in Murray v. Schooner Charming Betsy, 6 U.S. 64, 2 Cranch 64 (1804) that “an
act of congress ought never to be construed to violate the law of nations if any other possible construction remains”).
Justice Scalia characterized this canon as distinct from the general presumption employed by U.S. courts that
congressional enactments are not meant to apply extraterritorially unless a contrary intent is evident. Id. at 814.
292
Hartford Fire Ins. Co., 509 U.S. at 815.
293
Id. See also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 176 (2004) (Scalia, J., concurring)
(concurring in judgment because the majority’s construction of the relevant statute was “consistent with the principle
that statutes should be read in accord with the customary deference to the application of foreign countries’ laws within
(continued...)
288
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Justice Scalia also opined that ratified treaties do not enable Congress to legislate on matters
beyond the scope of its enumerated powers under Article I of the Constitution. At least since the
Supreme Court’s 1920 ruling in Missouri v. Holland,294 U.S. courts have recognized that
Congress may enact legislation necessary and proper to carry out obligations imposed by a
ratified treaty, including legislation on matters that have traditionally been regulated by the states
and which could not be reached through legislation premised on Congress’s enumerated powers
under Article I. Justice Scalia disagreed with this long-standing interpretation, believing it
“enables the fundamental constitutional principle of limited federal powers to be set aside by the
President and Senate’s exercise of the treaty power.”295 He believed that the text and structure of
the Constitution indicates that the Necessary and Proper Clause enables Congress to take action
only to assist in implementing the President’s power, under the Treaty Clause of Article II, to
“make” a treaty, such as by enacting legislation intended to assist the President in negotiating and
concluding an international legal agreement.296 But, in Justice Scalia’s view, Congress may enact
legislation only to implement the obligations of a treaty “made” by the President to the extent that
such legislation is within the scope of its enumerated powers under Article I.297
Right to Bear Arms298
In 2008, the Supreme Court decided District of Columbia v. Heller,299 a landmark decision
wherein the Court addressed the nature of the rights conferred by the Second Amendment.300 By a
vote of 5-4, the Court struck down the District of Columbia’s provisions that effectively
prevented handgun ownership.301 Justice Scalia authored the majority opinion, holding that the
Second Amendment “protects an individual right to possess a firearm, unconnected with service
in a militia, and to use the firearm for traditionally lawful purposes, such as self-defense within
the home.”302 Under an originalist approach to constitutional interpretation,303 the majority
(...continued)
their own territories”).
294
Missouri v. Holland, 252 U.S. 416 (1920).
295
Bond v. United States, --- U.S. ---, 134 S. Ct. 2077, 2102 (2014) (Scalia, J., concurring in judgment). In Bond, the
Court was asked to consider whether the Tenth Amendment acts as a constitutional constraint upon Congress’s ability
to enact treaty-implementing legislation. The majority opinion declined to reach this issue, as it construed the
challenged legislation as having not been intended to cover activities traditionally falling under state or local control.
296
Id. at 2099.
297
Id.
298
CRS Legislative Attorney (name redacted) authored this section of the report
.
299
554 U.S. 570 (2008).
300
In 1939, the Court decided United States v. Miller, 307 U.S. 174 (1939), wherein it considered the validity of a
provision in the National Firearms Act of 1934 in relation to the Second Amendment. This decision was commonly
cited in subsequent lower court decisions as supportive of the proposition that the Second Amendment confers a
collective right to keep and bear arms. See, e.g., United States v. Smith, 18 Fed. App’x. 201 (4th Cir. 2001); United
States v. Hamblen, 239 Fed. App’x. 130 (6th Cir. 2007).
301
D.C. CODE §7-.....02(a)(4) (2007) (generally barring registration of handguns, thereby effectively prohibiting the
possession of handguns in the District); D.C. CODE §22-4504(a) (2007) (prohibition on carrying a pistol without a
license that would have prevented registrants from moving a gun from one room to another within their homes); D.C.
CODE §7-.....02 (2007) (requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a
trigger lock or similar device).
302
Heller, 554 U.S. at 577. In 2010, the Court went on to decide McDonald v. City of Chicago, 561 U.S. 742 (2010),
holding that the Second Amendment also applies to the states, meaning that such constitutional right may not be
infringed upon by local governments. The decision, however, did not further explore the scope of the Second
Amendment. Justice Alito authored the majority opinion, which was joined by Chief Justice Roberts and Justices
(continued...)
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opinion separately reviewed the various clauses of the Amendment as they would have been
understood during the Founding era.304 Based on a textualist reading of key phrases and an
exhaustive discussion of the historical underpinnings of the Amendment, the Court held that the
amendment “creates an individual right to keep and bear arms.”305 The majority opinion affirmed
its “individual right” interpretation of the Second Amendment by reviewing the Amendment as it
was understood during the time period immediately after its ratification through the end of the
19th century306 and comparing the Amendment against analogous rights in state constitutions.307
Justice Scalia’s analysis concluded by noting that “the right secured by the Second Amendment is
not unlimited” and that “nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms.”308 The types of
aforementioned measures, though not an exhaustive list, are “presumptively lawful” regulatory
provisions according to Heller.309
Heller’s significance is two-fold. First, Heller with its reliance on and employment of
constitutional history, is recognized as signaling the Court’s embrace of originalism.310 It is
notable that not only did Justice Scalia evaluate the Second Amendment under an originalist
approach, but so did Justice Stevens, who wrote the dissenting opinion, which reached the
opposite interpretation.311 Second, Heller arguably marks a new era in Second Amendment
jurisprudence because the individual rights interpretation has paved the way for more
constitutional challenges to federal and state firearms laws. However, lower courts, which have
since entertained numerous Second Amendment cases, have been left with the task of addressing
(...continued)
Scalia, Kennedy, and Thomas.
303
Heller, 554 U.S. at 576 (“In interpreting this text, we are guided by the principle that ‘[t]he Constitution was written
to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from
technical meaning.’”).
304
Id. at 579- 97. Justice Scalia first focused on the operative clause—“the right of the people to keep and bear Arms,
shall not be infringed”—finding that the textual elements of the clause and the historical background of the
Amendment “guarantee the individual right to possess and carry weapons in case of confrontation” not connected to
service in a militia. Id. at 579-95. The opinion next focused on the text of the prefatory clause—“[a] well regulated
Militia, being necessary to the security of a free State”—determining that (1) the term “Militia” refers to all able-bodied
men, rather than the state and congressionally regulated military forces; (2) the phrase “well regulated” “implies
nothing more than [the] imposition of proper discipline and training”; and (3) the phrase “security of a free State”
means “‘security of a free polity,’ not security of each of the several States.” Id. at 595-97.
305
Id. at 598.
306
Id. at 605-19.
307
Id. at 600-03. Justice Scalia also took the view that none of the Court’s precedents related to the Second Amendment
foreclosed an individual rights interpretation of the Second Amendment. Id. at 619-26.
308
Id. at 626-27.
309
Id. at 627 n.26.
310
See, e.g., Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV.
191, 191 (2008) (“Heller marks the ‘Triumph of Originalism.’”); Randy E. Barnett, Scalia Restored the Right to Bear
Arms, USA TODAY (February 17, 2016), available at http://www.usatoday.com/story/opinion/2016/02/17/randybarnett-antonin-scalia-new-originalism-heller-second-amendment-column/80450446/; Jeffrey Toobin, How Scalia
Changed the Court, NEW YORKER (February 13, 2016), available at http://www.newyorker.com/news/news-desk/howscalia-changed-the-supreme-court.
311
In contrast, in his analysis of the text and history, Justice Stevens opined that the Second Amendment was meant to
protect only “the right of the people of each of the several States to maintain a well-regulated militia.” Heller I, 554
U.S. at 637 (Stevens, J., dissenting).
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questions unresolved in the Heller decision, such as the standard of judicial review to be applied,
and the nature of the rights protected under the Second Amendment.312 The Supreme Court has
declined to review many Second Amendment cases, sometimes over the dissents of Justices
Scalia and Thomas, who have expressed concern over how lower courts have, to date, been
evaluating firearms laws under the Second Amendment.313 Justice Scalia’s opinion in Heller
marked a starting point for understanding the meaning of the Second Amendment, but it remains
for his successor and the Court to clarify and reexamine the contours of this right.
Separation of Powers314
Long before Justice Scalia was appointed to the bench, Supreme Court Justices professed an
understanding that the aim of constitutional separation of powers principles is the protection of
liberty,315 not a means for ensuring efficient government.316 Two schools of thought have
developed for approaching separation of powers disputes. The formalist interpretation focuses on
the structural divisions in the Constitution with the idea that close adherence to these rules is
required in order to achieve the preservation of liberty.317 The functionalist interpretation takes a
312
See, e.g., New York State & Rifle Pistol Ass’n v. Cuomo, 804 F.3d 242 (2d Cir. 2015) (upholding New York and
Connecticut state laws that ban certain assault weapons and large capacity magazines but declaring unconstitutional
New York State’s seven-round load limit and Connecticut’s prohibition on a specific type of non-semiautomatic
firearm); Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012) (upholding New York state requirement that
applicants show proper cause to obtain a concealed carry license); United States v. Chapman, 666 F.3d 220 (4th Cir.
2012) (upholding federal law that prohibits persons subject to domestic violence order from possessing a firearm);
United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (same); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs,
788 F.3d 1318 (11th Cir. 2015) (upholding federal regulation that bans loaded firearms and ammunition on property
managed by the U.S. Army Corps of Engineers); Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir.
2011) (upholding District of Columbia’s regulations requiring the registration of firearms and banning assault weapons
and large capacity magazines); but see Peruta v. Cty. of San Diego, 771 F.3d 570 (9th Cir. 2014) (ruling
unconstitutional a San Diego County policy interpreting a California’s requirement to show “good cause” for a
concealed handgun license); Heller v. District of Columbia (Heller III), 801 F.3d 264 (D.C. Cir. 2015) (ruling
unconstitutional four of the ten challenged provisions related to firearms registration).
313
136 S. Ct. 447 (2015) (order denying review of Friedman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015));
128 S. Ct. 2799 (order denying review of Jackson v. City and County of San Francisco, 746 F.3d 953 (9th Cir. 2014)).
314
CRS Legislative Attorney (name redacted) authored this section of the report.
315
Meyers v. United States, 272 U.S. 52, 116 (1926). Chief Justice Taft wrote:
Montesquieu’s view that the maintenance of independence, as between the legislative, the
executive and the judicial branches, was a security for the people had [the Framers’] full approval.
Accordingly the Constitution was so framed as to vest in the Congress all legislative powers therein
granted, to vest in the President the executive power, and to vest in one Supreme Court and such
inferior courts as Congress might establish the judicial power. From this division on principle, the
reasonable construction of the Constitution must be that the branches should be kept separate in all
cases in which they were not expressly blended, and the Constitution should be expounded to blend
them no more than it affirmatively requires. (internal citations omitted).
316
Id. at 293 (Brandeis, J., dissenting) (“The doctrine of the separation of powers was adopted by the convention of
1787 not to promote efficiency but to preclude the exercise of arbitra
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