Tuesday, October 8, 2013

Scalia and Holmes

The helpful Constitutional Law Prof provides a link to Justice Scalia's long interview in this week's New York Magazine. Scalia, a likeable man, spoke freely about his beliefs and his determination to remain on the Court. He is evidently a man of doctrine--speaking of his solitary dissents, he does not say he disagrees with the other justices, he says only that they are wrong. The doctrine he most struggles against seems to be a straw man, however. Asked how he arrived at his originalist philosophy, he says:
Words [in the Constitution] have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?
But it was Justice Holmes, answering the Scalia of his day, who said that a word in the Constitution "is not a crystal, transparent and unchanged, but the skin of a living thought." Holmes may have had a better grasp of the Founder's understanding. The written yext doesn't change, but the way in which its broad maxims apply to the modern world must be different than their eighteenth century application.

In Justice Scalia's earlier writings, he is more clear about the conflict of doctrines. What he opposes is the idea that the Supreme Court is a common-law court, bound by its own precedents, a doctrine that is now identified with Holmes. Scalia wants to use the text of the Constitution, as he believes the Founders understood it, to overrule those wrong decisions of the justices. He mentions Holmes in passing, but does not make quite clear that he disagrees on this fundamental question with arguably the greatest of American justices. In a touching conclusion,however, Scalia concedes that it will be Holmes's doctrine that in the long run governs.
If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.