As Shakespeare would say, nothing became him in life so much as the leaving of it . . . Antonin Scalia died as he had lived, enjoying himself in a haunt of privilege, preparing to shoot animals for pleasure. Well, he would have been a droll figure if he had not managed to do so much harm, but he does leave us with an object lesson as to why the U.S. Supreme Court is a pernicious institution that has no business functioning as it does in a democracy.
Other countries have high courts; none has the power for nine officials, appointed for life, to overturn the laws passed by popularly elected assemblies with the independent concurrence of a chief executive, also popularly elected. Let us remember, while we are parsing Justice Scalia’s doctrine of original intent, that the Constitution says nothing at all about the Court’s assumed power, exercised since Marbury v. Madison, to reshape or annul legislative enactments. The British get along without such a body; in fact, they get along without a written constitution of any kind. I get it that the pope thinks he is divinely inspired to read the original intent of Scripture, little as I may agree with the idea. But that nine clerks can tell us what the assemblage of politicians, landowners, and slaveholders who met in Philadelphia two and a quarter centuries ago to write a governance document had in mind, and that their view of what those worthies thought and meant, transposed from an agricultural Republic of three million souls to a postindustrial one of three hundred million, should bind us hand and foot, has to be the most peculiar idea ever foisted on a supposedly self-governing people. Slavery, people used to say, was America’s “peculiar institution.” I think we can fairly apply the term to the U.S. Supreme Court.
The doctrine of original intent — that justices should seek to discern what the Founding Fathers intended in 1787, and restrict themselves to applying the law, including statute law, to such matters only as they considered and in such a manner as they would approve today — is now popularly associated with Scalia, but it is very much older than that. It’s an idea preposterous on the face of it, an exercise in judicial necromancy, but it does provide ideological cover for a particularly pernicious kind of conservatism. A good illustration of it in action is the career of Justice Felix Frankfurter, who was appointed to the Supreme Court by Franklin Roosevelt, and who died in 1965. Frankfurter was, in his early career, a liberal whom Roosevelt seemed to have good grounds to believe would be a reliable supporter of the New Deal. Little by little, however, he moved to the right, until he wound up a deep-dyed reactionary who justified his opinions by reference to original intent. No doubt, he was sincere in his conviction. We can always find good reasons for approving what we see in the mirror; the beauty industry depends on it. Whether it is a rationale for judicial policy-making is another matter.
There is a good and simple reason for rejecting original intent, the absurdity of long-distance mind-reading to one side. The Founding Fathers themselves didn’t agree on it. They gave us a blueprint for government—“a Republic, if you can keep it,” in Ben Franklin’s famous words—but they differed themselves about what it meant and how it should be applied. Their disputes are enshrined in the Federalist Papers. What one gleans from them is only the sensible conclusion that they expected their arguments to continue, and that each generation would have to sustain the nation according to its own lights.
Meanwhile, looking back at the 200 plus year history of the Supreme Court is a singularly unedifying experience. In a federal system such as ours, such a court serves the useful and perhaps indispensable function of sorting out discrepancies between state courts and legislatures from the national ones. That it can overturn Congressional acts and decide issues of national controversy, however, is a very far stretch indeed. The proper recourse for poorly conceived statutes is the electorate, which can and should turn miscreant legislators out of office. It does not do for nine unaccountable jurists to do the people’s job for them, or to decide what it is.
The Court’s actual role has been, largely, to protect or invent property rights on behalf of powerful interests. Its most notorious ruling, the Dred Scott case, is the classic example. Dred Scott not only found that the institution of slavery was customary, nor simply legal in the states where it obtained, but that free states were bound to cooperate in enforcing slave codes not their own making and, beyond even that, that the Constitution itself recognized the right to property of human persons. This was not only without foundation, but contrary to the clear evidence in the original debates that such a claim had been rejected. The Dred Scott Court therefore created “rights” where none existed or were intended but were in fact deliberately excluded. A convention of slaveowners could have come up with nothing worse. After Dred Scott, it was clear that the nation’s course was set for the civil war that would cost 700,000 lives. That’s what judicial tyranny can get you.
During the First Gilded Age of the late 19th and early 20th centuries, the Court consistently upheld property rights, including the taking of property for commercial and monopolistic enterprises, over the rights of labor to organize and agitate for safe and humane working conditions and living wages. It beat back a variety of progressive reforms, already introduced in Europe, that have left us a century later with us with the worst systems of health, welfare, employment security, and child protection of any major Western country. Only very rarely, and only as a result of great social and political pressure, did the Court consider what the Constitution set out as its own stated goal—to promote the general welfare. The Court even went so far, in considering criminal procedure, as to declare that actual innocence was not a sufficient ground for appeal to it, an idea no judicial tribunal had ever put out before. In a titular democracy, it beggars belief the harm we entitle nine people to do.
Justice Scalia’s own name is most associated with the decision in Citizens United (2010) that corporations are “people” with First Amendment rights of speech, which — since certificates of legal registration have no vocal cords or working brains — means in practice that those who operate them can buy actors or politicians to speak the lines scripted for them, regardless of the interests or opinions of shareholders. I won’t go into the effects Citizens United has worked on our electoral system, which are plain for all to see, but simply consider it as an application of original intent doctrine. You will not find any indication of corporate rights in the Constitution for the simple reason that corporations did not exist in the late 18th century. It may therefore seem a particularly tortured form of reasoning to equate the rights of actual persons with legal fictions, but where did the fiction not exist in the first place? Dred Scott created a phantasmal right to human enslavement, and the Gilded Age Court a corporate right to worker dispossession and exploitation. Now, Citizens United has conferred on the corporation the blaring rights to silence democracy itself.
As for Scalia, his own career on the bench best gives the lie to original intent doctrine. If original intent is to be persuasive as a reading of the Constitution, it should be, when properly ascertained and argued, obvious and convincing to all. But few justices in Court history have found themselves so frequently in a minority of one as Scalia, and none prior to him have been so abrasively dismissive of his colleagues, to the point of intellectual contempt. So, it would seem, what original intent really means is what Antonin Scalia thought it meant at any given time, whether anyone else saw it his way or not. And what not agreeing with him meant was that you were a jerk.
So, if original intent ever had a meaning, it plainly died with Scalia himself. Tom Jefferson, Ben Franklin, James Madison — those guys only thought they understood the text they labored to produce through a hot Philadelphia summer. Antonin Scalia was the only person who could have told them what they were really doing. But he wasn’t around then, and he’s no longer with us now. Wouldn’t it better to stop casting spells to read defunct oracles, and let democracy speak directly for itself? But for those who have used this legal mumbo-jumbo to stifle the will of the majority, that’s the last result they want.