Vol. 17 No. 2 (February, 2007) pp.96-100
THE POLITICAL THOUGHT OF JUSTICE ANTONIN SCALIA: A HAMILTONIAN ON THE SUPREME COURT, by James B. Staab. Lanham, MD: Rowman & Littlefield Publishers, Inc., 2006. 416pp. Cloth $85.00. ISBN 0742543102. Paper $34.95. 0742543110.
Reviewed by Artemus Ward, Northern Illinois University. Email: aeward [at] niu.edu.
Semester after semester, no single justice gets my students’ blood boiling more than Justice Antonin Scalia. Love him or hate him, Nino – as he is known to his friends and colleagues – always engenders a reaction whether it is for his punchy prose, intellectual acumen, or combative style. Even within the Court, where his memos are often referred to as “Ninograms” (See e.g. Sarah H. Cleveland to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 633), Scalia’s gifts are readily apparent to those who work with him. For example, the papers of Justice Harry Blackmun reveal that when Scalia tried his hand at a majority opinion in the voting rights case, HOLDER v. HALL (1994), Justice Ginsburg wrote him, “In strength and style, just what I expected, but I join John in awaiting Harry’s dissent” (Ruth Bader Ginsburg to Antonin Scalia, November 15, 1993, BLACKMUN PAPERS, Box 631). In the same case, Blackmun clerk Ann Hubbard advised her boss: “I would like to see you take the lead in pulling the rug out from under Justice Scalia’s duplicitous, pernicious opinion” (Ann Hubbard to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 632). Ultimately Scalia was unable to garner a Court and never did issue an opinion in HOLDER. Is there something about Scalia’s personality, jurisprudence, or both that makes compromise difficult if not impossible for him? James B. Staab’s new book helps us find the answer.
In general, Scalia is most closely identified with a formal textualist and originalist jurisprudence. He argues that the plain meaning and the original understanding of the Constitution or statute in question should guide judges in making decisions. He uses history and tradition to determine original meaning. He is critical of his colleagues who espouse the idea of a living Constitution, in which the document’s broad principles are to be reinterpreted as society evolves. Scalia sees the living Constitution theory in conspiratorial terms. He rails against those who use it, seeing the theory as a smokescreen for judicial activism with judges illegitimately enacting their preferred policies in the name of the Constitution. Scalia points to the formal amendment process as the only legitimate way to change the document. Given Scalia’s stated penchant for these controversial positions, it is not surprising that scholars have chosen to study his behavior and opinions systematically to see if he practices what he preaches.
In the 200-year-history of the Supreme Court, no sitting justice has been the subject of such an extensive scholarly literature, as has Scalia. Through countless articles and numerous book-length treatments a contentious [*97] sub-literature has formed that attempts to explain his jurisprudence and effect on the law. Christopher E. Smith’s JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE MOMENT (1994) argues that Scalia failed to lead the judicial counterrevolution that wasn’t because he sometimes reached liberal results and alienated his conservative allies along the way through his polarizing behavior. David Schultz and Christopher E. Smith’s THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA (1997) contends that Scalia’s jurisprudence is inconsistent as he employs an outcome-oriented mode in matters he is passionate about and uses a more traditional jurisprudential approach in other areas. Richard A. Brisbin, Jr.’s JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL (1998) argues that the justice’s behavior reflects contemporary political conservatism. Ralph Rossum’s ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION (2006) seeks to rescue Scalia from the critiques leveled by others by placing the justice back in the textualist and originalist frameworks. It is into this breach that Staab puts forth his unique argument.
What immediately sets Staab’s treatment apart from the rest is his analytical framework: comparing Scalia’s philosophy with Alexander Hamilton. With the recent publication of the excellent biography, ALEXANDER HAMILTON (2004) by award-winning author Ron Chernow, Hamilton may be in the minds of scholars and in the public eye in a way that has not happened for some time. When I think of Hamilton, I immediately identify him with the polarizing debate over federalism that has in many ways defined the United States throughout its two-hundred-year history. Hamilton is generally associated with the cooperative-federalist, or nationalist, view of the Constitution and nation. One only need reference the opposing views of Secretary of the Treasury Hamilton and Secretary of State Thomas Jefferson over the creation of a national bank to see how Americans differ on the issue of federalism. Hamilton’s expansive reading of the Constitution was ultimately adopted by President George Washington and sustained by Chief Justice John Marshall and the Supreme Court in MCCULLOUGH v. MARYLAND (1811). Translating the founding debate between nationalism and states’ rights to the current Supreme Court is no easy task, but most court-watchers would intuitively place the Court’s conservatives – and particularly Justice Scalia – in the Jeffersonian, states’ rights, dual federalism camp. Given Scalia’s seeming alignment with dual federalism, one can only be intrigued by a book that describes Scalia as a Hamiltonian. How can this be?
In Chapter One, Staab begins by discussing the six major schools of conservative jurisprudence and their contemporary adherents. He argues that Scalia’s political philosophy is classical liberalism in the tradition of Thomas Hobbes, David Hume, John Locke, Charles de Secondat Montesquieu, and Niccolo Machiavelli. Staab then explains that what makes Scalia Hamiltonian is that, in contrast to modern libertarians, [*98] Scalia has a favorable view of governmental power. Staab draws on numerous speeches where Scalia espouses federal power and even invokes Hamilton. According to Staab, Hamilton’s political principles consisted of a formalistic view of separation of powers, an energetic executive, a political conception of public administration, a strong and independent federal judiciary, and a political process approach toward federalism. In the substantive chapters, Staab demonstrates how these Hamiltonian political principles are reflected in Scalia’s jurisprudence.
Chapter Two focuses on legal standing, and Chapter Three covers separation of powers – namely disputes between Congress and the president. In both, Staab argues that Hamilton and Scalia have a formalistic interpretation of separation of powers that protects both executive and judicial power. Staab notes that Scalia has been particularly willing to strike down federal legislation that would encroach on executive authority. In Chapter Four the author discusses how both Hamilton and Scalia take strong pro-executive authority positions, including the inherent power of the presidency particularly in the area of foreign affairs. Chapter Five argues that both have defended a theory of public administration based on the concepts of unity, discretion, and policy making.
Chapter Six argues that both Hamilton and Scalia view the judiciary as having a limited role in a democratic form of government. That said, the author does admit that “Scalia has not been reluctant to strike down federal or state laws that he believes conflict with the text or structure of the Constitution” (p. xxvi). It is plain that Scalia’s deference is very different from the judicial restraint practiced by Justice Felix Frankfurter (see e.g. Keck 2004). Chapter Seven discusses how both Hamilton and Scalia believe that the role of a judge is to interpret text and not make policy: textualism acts as a constraint on judging. While some readers may not be persuaded by the author’s arguments in this chapter that Hamilton would not be a supporter of the living constitution theory and would be against the substantive due process of LOCHNER v. NEW YORK (1905) and ROE v. WADE (1973), the section is certainly thought-provoking.
Chapters Eight and Nine delve into the murky waters of federalism. The author recognizes Hamilton’s expansive nationalist position and argues that Scalia has also taken a nationalist stance toward federalism disputes – though for conservative purposes. For example, Staab notes that Scalia ranks first among the justices in voting for the federal government in preemption cases and points out that Scalia’s Hamiltonianism accounts for his nationalist vote in the medical marijuana case, GONZALES v. RAICH (2005). Still, Staab argues that over time Scalia has moderated his federalism position and now resembles Madison more than Hamilton. This change, Staab suggests, allows Scalia to vote with his states’ rights colleagues for conservative ends. In essence, Scalia can have it both ways. [*99]
In the Conclusion, Staab explains that both Hamilton and Scalia are similar in temperament as well as political vision. Both have intellectual and literary gifts and a high sense of character, in addition to being bold, decisive leaders for conservative goals. Hamilton’s governmental and financial ideas were put in place to stabilize and bolster the new nation, while Scalia has called for overturning more Supreme Court precedents than nearly every other justice and has advocated a rule-based jurisprudence to check judicial discretion. Staab calls Scalia the Court’s “counterrevolutionary” because he seeks to return the law to the pre-Warren-Court days of original principles (p. 324). And though Staab argues that both are conservative, the reader cannot help but think that a strong argument could be made that Hamilton has more in common with the nationalist modern liberals. Similarly, how conservative is it to be one of the most activist justices in history in terms of overturning popularly enacted laws (Keck 2004)?
In a recent interview, Chief Justice John Roberts commented on how he would like the Court to be more collegial and less about nine different personalities: “A justice is not like a law professor, who might say, ‘This is my theory . . . and this is what I’m going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area. It would be good to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record” (Rosen 2007). There is little doubt that Scalia follows the law professor model that Roberts criticizes. If we are persuaded by Staab’s argument – and there is much evidence that suggests we should – Roberts will have a difficult time convincing Scalia to give up some of his deeply-felt principles for the sake of collegiality and unanimity. If Scalia’s first twenty years on the Court are any guide, Roberts may be forced to disadvantage if not punish his conservative colleague by working with those justices who are both less doctrinaire and more willing to compromise. Yet, as Staab’s discussion of Scalia’s shift from Hamiltonianism to Madisonianism in federalism matters suggests, Scalia may have already demonstrated an ability to change. Whether the seventy-one-year-old jurist, who has been retirement eligible since 2001, changes enough to be considered a team player by the new Chief Justice remains to be seen.
Richard A. Brisbin, Jr. 1997. JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL. Baltimore: The Johns Hopkins University Press.
Chernow, Ron. 2004. ALEXANDER HAMILTON. New York. The Penguin Press.
Cleveland, Sarah H. to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 633.
Ginsburg, Ruth Bader to Antonin Scalia, November 15, 1993, BLACKMUN PAPERS, Box 631. [*100]
Hubbard, Ann to Harry A. Blackmun, November 23, 1993, BLACKMUN PAPERS, Box 632.
Keck, Thomas M. 2004. THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM. Chicago: University of Chicago Press.
Rosen, Jeffrey. 2007. “Roberts’ Rules,” ATLANTIC MONTHLY. January/February.
Rossum, Ralph. 2006. ANTONIN SCALIA’S JURISPRUDENCE: TEXT AND TRADITION. Lawrence: University Press of Kansas.
Schultz, David A. and Christopher E. Smith. 1996. THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA. Lanham: Rowman & Littlefield Publishers, Inc.
Smith, Christopher E. 1993. JUSTICE ANTONIN SCALIA AND THE SUPREME COURT'S CONSERVATIVE MOMENT. Westport: Praeger Press.
GONZALES v. RAICH, 545 U.S. 1 (2005).
HOLDER v. HALL, 512 U.S. 874 (1994).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MCCULLOUGH v. MARYLAND, 17 U.S. 316 (1811).
ROE v. WADE, 410 U.S. 113 (1973).
© Copyright 2007 by the author, Artemus Ward.