Scalia's Inconsistency: Who Cares? OR, How I Learned to Stop Worrying and Love Originalism
The theory seems to be that originalism in general, or some opinion in particular, can be undermined by the charge that Scalia is not following his own principles. As the instant case, Roper, discussed by Kerr's post demonstrates, this charge can be too simple-minded. But let's assume that there are instances (as Kerr implies) wherein Scalia fails to follow his own principles: what of it?
Let us begin with a reason why the charge should be difficult to lodge, in general: justices hold many principles, and some of them naturally come into tension with each other. Any judge who invokes stare decisis, after all, will at one level be contradicting her principles, since the very doctrine is basically an acknowledgement that sometimes old law that was bad law should stand in interests of stability, the rule of law, or the like. As Scalia has said of why he is content to let some crazy old doctrines stand, "I may be a textualist and an originalist, but I am not a nut." Judging is hard work even for one who yearns as Scalia does to announce rules rather than standards, bright lines rather than balancing tests, precisely because hard cases often pit competing principles against one another.
But let us go further still: assume the worst case, that Scalia just fumbles on occasion--out of a too strong desire to get the right result, out of fatigue, out of confusion, out of a desire to placate the rest of the Court (OK, perhaps that's not so likely)--what does that show? It shows that--get this--Scalia is fallible! But Scalia has never made any claim that one entailment of his originalism is that he possesses even wider infallibility than the Bishop of Rome. I know of no defender of originalism or textualism who defends it on the basis of the personal virtues evinced by Scalia, Thomas, Luttig, or any other of the most reviled practitioners of these doctrines.
I take it, rather, that one of the points of Justice Scalia's preference for these modes of analysis is that he and all judges (being human) are fallible, and are prone to substitute their own judgment for the law--the judicial sin. It is precisely because he knows himself to be a sinner in this regard that he wants all judges to adhere to that jurisprudence which poses the fewest near occasions of sin: textualism and originalism. Recall his recent debate with Justice Breyer wherein he worried about the use of international sources (as he does in Roper) for Constitutional adjudication precisely because it opens the judge to temptation:
I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. Now, I have to write something that -- you know, that sounds like a lawyer, okay?
I have to cite something. (Laughter.) I can't -- I can't cite a prior American opinion because I'm overruling two centuries of practice, okay? (Laughter.) I can't -- I can't cite the laws of the American people because, in fact, only 18 of the 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?...
I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does.
Hence, one adopts originalism and textualism because one does not believe even in oneself as an infallible source of truth (moral, legal or otherwise). For a different model of the role of a judge, see here.
The foregoing considerations lead me to worry little about the charge of any given judge's (including my judicial hero Antonin Scalia's) inconsistency, real or imagined. If Scalia fails to follow originalism in a given case, for reasons not having to do with stare decisis but just because he messed up, why should this shake my faith in originalism? The charge of inconsistency is about a man (in this case) not a doctrine.
Indeed, one often hears two charges leveled against originalism by the same people: first, that it is useless because, after [Wittgentstein, Derrida, Foucault, insert hero of post-modern skepticism about language here] we know language can't be as useful as textualists/originalists require; and second, look how often textualists/originalists can be shown to violate text and original meaning. Note that the second charge could not be proven true if the first were true! Since I concede the second, I am happy to denounce the post-modern attack on textualism/originalism as nonsense, and then hew to originalism as the worst doctrine of jurisprudenc--except all the rest! If I am correct, then evidence that even a committed and smart originalist like Scalia occasionally fails to follow his own principles makes me want to follow those very principles even more: since if it is possible to make mistakes using an approach that more sophisticated thinkers find simple-minded, overly mechanical, or the like, then how much more likely that I will find occasion to sin when sitting, all Kennedy-like, as a moral guardian of the Republic, freed from much attachment to legal materials at all?