President Trump’s announcement on January 31, 2017, that he was filling the empty U.S. Supreme Court seat held by the late Antonin Scalia with another conservative justice got me thinking about a new book, written by a friend (who from time to time has represented me), David Dorsen. David’s new book is just rolling off the presses, and is titled The Unexpected Scalia: Liberal Opinions from a Conservative Justice (Cambridge University Press 2017).
Justice Scalia knew David was writing this book because they were friends. Scalia, along with Justice Stephen Breyer and yours truly were readers of David’s last book, a remarkable bit of scholarship, Henry Friendly, Greatest Judge of His Era (Harvard University Press 2012). I first met David when he was assistant chief counsel of the Senate Watergate Committee, but in the past 20 years, I’ve had the pleasure of really getting to know this Harvard-trained lawyer.
As I was watching President Trump tout Judge Neil Gorsuch’s conservative credentials, when nominating him to take Scalia’s seat on the high Court—just as when I have heard many people tout Justice Scalia’s conservative credentials—based on conversations with David I knew they really did not know what they were talking about. Scalia’s approach to understanding the Constitution produced what can only be labeled LIBERAL decisions.
David Dorsen has gone through Justice Scalia’s body of work and pulled these decisions out, studied them, talked to Scalia about them, and assembled a book about them that will undoubtedly surprise a lot of people. I thought this was the perfect moment to talk to David about his findings, and whether Judge Gorsuch is really a Scalia 2.0, who may also produce liberal rulings if confirmed for Scalia’s seat. I also thought it timely to asked David some broader questions as well.
Below is our email exchange.
QUESTION: What is the significance of one justice’s replacing another on the Supreme Court? Does one justice truly make a difference?
ANSWER: With only nine seats, one justice can make a big difference. Changing a single justice changes the Court. This is especially true with a Court closely divided philosophically between liberals and conservatives. There have been many significant 5-4 decisions in recent years. A change in one vote can reverse the constitutional law in important areas such as the right to an abortion, the right to die, the death penalty, gay rights, and many others momentous matters. Many decisions are not highly publicized, so they do not attract much public attention, but they are vital to our way of life not to mention the nation’s commerce and government.
QUESTION: I understand your new book explains that although Justice Scalia was conservative on issues that have attracted public attention, he was liberal in lesser known areas. Thus, many people have Justice Scalia wrong when they identify him as a rock-ribbed across-the-board consistent conservative on every issue, apparently including President Trump. You have discovered that, in fact, he was not a consistent conservative. How so?
ANSWER: Justice Scalia was an “originalist” and a “textualist.” His originalism, which typically produces a conservative result, nonetheless sometimes resulted in him writing liberal opinions. This is the thesis of my book. In fact, I discovered 135 of his opinions are surprisingly liberal out of approximately the 900 opinions he wrote—about 15 percent. In addition, his textualism led him to construe some statutes in favor of criminal defendants and sometimes against big businesses, which were therefore not conservative. Many people, including President Trump it appears, have an unclear view of Justice Scalia in believing he was a consistent originalist, thus always a conservative.
QUESTION: Would you briefly explain Scalia’s originalism and textualism?
ANSWER: Originalism requires that constitutional decisions be made exactly as it is believed they would have been made in 1789, the time of forming our Constitution, or when the relevant amendments to the Constitution were passed. For example, for the originalist the Second Amendment must be read the same as it would have been read by a well-informed citizen in 1791, when it was adopted. Since there were no abortion rights recognized then, there can be no abortion rights recognized now. Textualism is another interpretative tool which stresses the language of a statute (or the Constitution) rather than external matters such as the legislative history, which many judges use to determine what Congress sought to accomplish with a statute. It should be noted that everyone relies to a significant extent on the original meaning and the language of a statute or the Constitution, which is the starting point for interpretation. An important difference between originalists and others is that non-originalists will take a broader or developing view of the Constitution. Accordingly, for a non-originalist, contemporary values may play a key role in deciding, for example, what is cruel and unusual punishment under the Eighth Amendment.
QUESTION: How did this apply to Justice Scalia?
ANSWER: More than most originalists and textualists, Scalia followed his view of history, wherever that history took him. By that I mean, he wrote liberal opinions when he concluded that they were required by this history directed judicial philosophy. Because of his reading of history, he was the leader on the Court in upholding the right of criminal defendants to confront their accusers and limited the use of out-of-court statements that were not subject to cross-examination; he insisted on the right of the jury to decide all elements of a crime and all facts necessary to sustain a longer sentence of a criminal defendant, which led to reversals of lower courts.
QUESTION: Was Justice Scalia a consistent originalist?
ANSWER: It will surprise many, as it did me, that he was not. For example, he was not an originalist on freedom of speech, where he even sided with liberal Justice William Brennan.
QUESTION: For the lawyers, can you give a few examples of Scalia’s liberal opinions, and why they are liberal?
ANSWER: Some of his liberal opinions included, and not in any order: Crawford v. Washington (2004), which strengthened the Confrontation Clause by disallowing statements not subject to cross examination; Apprendi v. New Jersey (2000), which strengthened the Sixth Amendment right to trial by jury; Maryland v. King (2013), which opposed police who swabbed the mouth of someone arrested to see if his DNA could lead to other crimes; EEOC v. Abercrombie & Fitch (2015), which increased the protection given to a Muslim wearing a head scarf; and Smith v. Massachusetts (2005), where he held that a prosecution was barred by double jeopardy.
QUESTION: I have read that Justice Clarence Thomas and Scalia were the most conservative members of the Court when they were both on the Court? Is that correct?
ANSWER: Not by my analysis, given the number of Scalia’s liberal opinions. While Thomas agreed with Scalia in half the cases on which the two of them sat, Justice Samuel Alito agreed with Scalia on just 12 percent, which is a huge difference. In short, both Justices Thomas and Alito are well to the right of Justice Scalia.
QUESTION: How does originalism and textualism apply to President Trump’s nominee to replace Justice Scalia, Judge Neil Gorsuch?
ANSWER: Judge Gorsuch says he is an originalist, so some believe there will be little difference between him and Scalia. Many assume if Gorsuch is confirmed the Supreme Court will remain as if Scalia were still there. But I am skeptical. Originalists vary in views just like non-originalists. As just noted Justices Thomas and Alito frequently disagreed with Scalia. Judge Gorsuch may be more conservative than Scalia. We won’t know until he starts voting. Gorsuch has taken conservative positions on physician-assisted suicide and religious exemptions from the Affordable Care Act like both Scalia and Thomas. In other areas, however, he positions are essentially unknown.
QUESTION: Will we learn Gorsuch’s views during his confirmation hearings?
ANSWER: No. As you know, today nominees often refuse to answer many questions because the issue might come before them on the Court so they do not want to prejudge the cases. It’s a wonderful copout. Justice Thomas famously said that he did not have a position on whether the Constitution contained a right to abortion. That proved patently untrue. But there was nothing the Senators could do to force an answer during his confirmation proceeding nor anything they could do after his position became clear on the Court, short of impeachment, which would be something of an overreaction, if even possible.
QUESTION: Just to be clear, do you think Judge Gorsuch’s originalism and textualism could take him in any liberal directions like Scalia, if so, in what areas?
ANSWER: I think he may vote liberal on non-hot-button issues, such as right to trial by jury in both civil and criminal cases, double jeopardy, maybe some peripheral search-and-seizure issues, things like that. But not the highly-politicized issues like abortion, guns, and gays.
QUESTION: What is your take on the chances that Judge Gorsuch being confirmed?
ANSWER: The Republicans control the Senate, 52 to 48. While it takes only a majority to confirm, it takes 60 votes to break a filibuster, so Republicans must pick up 8 votes. when the Republicans consistently blocked President Obama’s nominees for Executive Branch and judicial appointments, Democrats had to change the rules to abolish filibuster on presidential appointments but kept the exception for Supreme Court justices who are still subject to a filibuster. If Trump can’t get eight Democrats to vote for Gorsuch, the Republicans must abolish the filibuster for the justice to get confirmed.
QUESTION: Is either likely to happen, meaning Gorsuch will find eight votes or the filibuster will be abolished for Supreme Court nominations?
ANSWER: In ordinary times, there would be a good chance of the former—a decision not to filibuster. Thomas was confirmed with fewer than 60 votes, although a filibuster might have worked. A filibuster on a Supreme Court nominee is unusual. But because the Republican Senate refused to allow a vote on Judge Merrick Garland, Obama’s last nominee, the Democrats are in no mood to let up. Gorsuch is far from the worst choice from the point of view of the Democrats, but that may not matter. It is not an objection based on the nominee’s personal qualifications. The issue for Democrats is abuse of power by Republicans—what they did to Merrick Garland. And how they stole a seat from Obama.
QUESTION: Will Democrats force the Republicans to changes the rules?
ANSWER: Of course, all it takes is a simple majority to change the rules. Donald Trump advocates a change to get Gorsuch confirmed. In fact, it is more complicated than it appears. Republicans know that what comes around goes around. They know the Democrats are very unhappy they changed the rules and eliminated the filibuster for lower court judges and other presidential appointees. Surely, they would like to filibuster several of Trump’s cabinet selections. Senators do not like to change the rules and the Senate Majority leader, Mitch McConnell has said as much.
QUESTION: Is there any chance that Judge Gorsuch could surprise us if he is confirmed?
ANSWER: Almost none, and then probably only in peripheral areas, if he does. He, like the other leading candidates for the nomination, has been a committed conservative for many years and ruled conservatively as an appellate judge for many years. Both the conservative Federalist Society and the Heritage Foundation vetted all the judges on Trump’s list. I think he is rock solid as a conservative.
QUESTION: But there have been surprises in the past?
ANSWER: There were several surprises in the late twentieth century, including Chief Justice Earl Warren and to some extent Chief Justice Warren Burger, who voted with the majority in Roe v. Wade. Also Justices Brennan, Stevens, Blackmun, and Souter were Republican nominees who disappointed conservatives. But none of them had a conservative record anywhere near Judge Gorsuch’s. Both Republicans and Democrats are much more ideological today than they were a generation or two ago.
QUESTION: Is there anything that liberals or moderates can do?
ANSWER: Pray that Justice Ginsburg remains healthy, as well as the other liberals on the Court.