Antonin Scalia may be one of the more intellectually gifted members of the current Supreme Court; beyond question, he is its most
provocative and exasperating justice. To a degree unprecedented in that tribunal's history, he regularly and publicly subjects
colleagues and counsel alike to scathing attacks and biting wit, seemingly oblivious to the impact of such behavior on both his own
influence and the Court's image. Claiming for himself an internally consistent constitutional jurisprudence based on fidelity to text,
original intent, and the nation's traditions and values, rather than on personal preference, Scalia has repeatedly accused his
colleagues--even some of those with whom he is most often aligned in voting on the Court--of capriciously substituting their own
policy choices for the Constitution's commands.
Nor are the current justices his only target. Scalia declined to join Justice Thomas' remarkable 1995 LOPEZ concurrence
supporting resurrection of E.C. KNIGHT, SCHECHTER, and other long-discredited pre-1937 Court decisions limiting the reach of
the commerce power. But he and Thomas, the colleague with whom Scalia is most frequently allied, show little regard for
precedent and thus hardly fit the mold of such traditional conservative/restraintist jurists as the second John Marshall Harlan.
The affable, outgoing Scalia took his seat on the high bench amid predictions that he would become one of the Court's intellectual
leaders and most influential members. But two Clinton appointments to the Court, together with Scalia's proclivity for extreme
positions, apparent disdain for bargaining or the forging of winning alliances, and penchant for ridicule, have obviously taken their
toll. Increasingly, he appears isolated from all his colleagues save Thomas and the chief justice. In fact, those appearing before the
Court to advocate positions with which the justice disagrees might be beginning to think that with Scalia as an enemy, they may not
Some of the very forces limiting his influence on the present Court, however, have made Scalia, among current justices, by far the
most frequent subject (and target) of scholarly analysts and media pundits. Professors Schultz and Smith have produced one of the
more systematic and thorough such efforts to appear to date. The authors or their publisher must be faulted for a poor job of
proofreading; portions of the book are replete with distracting typographical errors, some of which leave the reader (at least, this
reader) confused about the meaning of passages in the text. Substantively, though, Schultz and Smith have drawn extensively on
Justice Scalia's Supreme Court and lower court opinions, archival material, and numerous secondary sources to produce a
competent critical analysis of their subject's jurisprudence and approach to specific issues.
Unlike most students of Justice Scalia's career to date, Schultz and Smith refuse to accept the assumption that his commitment to
a textualist/originalist jurisprudence largely explains his stance in specific issue areas. Instead, they argue that the vision guiding the
justice's votes and opinions varies with the circumstances. In certain issue areas (e.g., death penalty and most other criminal
procedure cases), he seems genuinely committed to text and original intent--even when, as in Sixth-Fourteenth Amendment right
of confrontation cases, that commitment leads him in liberal/activist directions. But Scalia's votes and opinions in economic cases,
especially those arising under the takings clause, suggest a Manchester liberal embued with a post-CAROLENE PRODUCTS
jurisprudence in which rights of property assume a prominence they have not enjoyed on the Court since the LOCHNER era.
Similar considerations appear to guide the extreme deference to government Scalia embraces in free expression/association cases,
except those involving the constitutional claims of corporate interests. A strict dedication to separation of powers--albeit one
reflecting suspicion of legislatures and considerable deference to executive prerogative--appears to be his polestar in other cases.
In short, the authors contend, Scalia's votes and opinions appear to reflect a more outcome-oriented approach in cases that involve
issues he cares deeply about, but a more jurisprudential mode of analysis in other areas, with most of his opinions displaying to
some degree elements of both political and legalistic considerations.
Schultz and Smith arguably are right on target in concluding that the pattern of Justice Scalia's decisions reveals a complexity of
motivating factors rather than a commitment to a textualist/originalist jurisprudence alone. Students of the justice will share, too,
the authors' frustration at Scalia's annoying tendency to reveal almost nothing of the basis for his approach to certain issues and to
send mixed signals regarding his stance in other cases.
The study's most serious weakness, in my judgment, is the authors' failure to confront arguable inconsistencies between their
assessment of their subject as a Manchester liberal committed to limited governmental control of the economy and Scalia's
rejection of both substantive due process doctrine and strict judicial limits on state authority over interstate commerce. In BMW V.
GORE, 116 S.Ct. 1589 (1996), a majority invoked substantive due process to overturn a large jury award in a civil case as
unconstitutionally "excessive." Justice Scalia, joined by Justice Thomas, dissented, rejecting any conception of due process "as a
secret repository of substantive guarantees against 'unfairness'" (p. 1610). GORE was decided after JUSTICE ANTONIN
SCALIA went to press, but the justice had already made clear in several earlier opinions his opposition to application of
substantive due process, even in economic cases. In UNITED STATES V. CARLTON, 114 S. Ct. 2018, 2027 (1994), for
example, he termed the formula an "oxymoron" rather than a "constitutional right" and declared his belief "that the Due Process
Clause guarantees NO substantive rights, but only (as it says) process." Indeed, no justice since Hugo Black has been so
absolutely opposed to the use of due process as a substantive restriction on governmental power.
Like Justice Black, too, Scalia has been one of the members of the current Court most consistently opposed to judicially-imposed
limits on state authority over interstate commerce. He agrees that the judiciary can invalidate "rank [state] discrimination" against
interstate businesses via Article IV's privileges and immunities clause. He has also contended, however, that by going beyond
discriminatory regulations and striking down state laws held to place an "undue" burden on interstate commerce, the Court has long
usurped congressional commerce authority and "engaged in an enterprise that it has been unable to justify by textual support or
even coherent nontextual theory, that it was almost certainly not intended to undertake, and that it has not undertaken very well."
Tyler Pipe Indus. v. Wash. State Dept. of Rev., 483 U.S. 258, 265 (1987).
The authors contend, of course, that Justice Scalia's decision making is driven by a variety of forces that are not necessarily
internally consistent. It may be possible, moreover, to reconcile the justice's rejection of substantive due process and support for
limited judicial oversight of state commercial regulations with his broad construction of property rights under the takings clause and
general image as a Manchester liberal. After all, by opposing substantive due process, yet giving a broad interpretation to the
takings clause, Scalia the Manchester liberal, in a sense, can have his cake and eat it, too. On the one hand, he undermines the
clause (due process) used principally by the modern Supreme Court to safeguard abortions and related rights of sexual privacy
rather than commercial interests, yet does so in a way that rejects all use of substantive due process, not merely its application in
personal rights cases. At the same time, he bolsters property rights through a greatly invigorated takings clause--a guarantee that,
by its very language, provides protection ONLY for property interests. Thus, he can appear to be a textualist/originalist while
actually pursuing the political goals of strengthening protection for property rights and limiting the scope of non-economic personal
rights entitled to constitutional protection.
Even so, it is difficult to square the authors' characterization of the justice as a Manchester liberal with his opposition to economic
due process and rejection of judicial use of the congressional commerce power to limit state regulatory authority, and they should
have confronted this possible inconsistency in their analysis. In the main, however, Schultz and Smith have produced a thoughtful
analysis of the current Court's most interesting figure and, as they recognize, the justice whom election of another Republican
president could ultimately make the most influential force on the nation's highest tribunal. Highly recommended.