Supreme Court Justice Antonin Scalia differs from almost every other member of the federal government inasmuch as I’ve always at least wanted to like him. I like his temperament, and his Supreme Court opinions (or even better, the dissents) are almost always a great read because they’re well written and unafraid to ridicule his colleagues’ outrageous views. He’s also great to listen to in person, if you ever have the chance.
Still, liking Scalia can be difficult. After all, anyone who’s friends with Dick Cheney can’t be all good, and probably is no good at all.
Now, via the Volokh Conspiracy, I see that Randy Barnett has made Scalia admiration even more difficult for me by publishing an evisceration of Scalia’s putative originalist credentials.
Of course, Scalia revealed himself to be a less-than-fully-committed originalist (one might charitably say) with his Raich v. Gonzales opinion, which held that Congress can regulate wholly intrastate marijuana use through the Commerce Clause. But Barnett shows that Scalia’s problems go far beyond that one case and that, in fact, Scalia has never been a true originalist. Instead, Scalia adheres to a philosophy that allows him to reach “any result he wishes,” particularly where genuine originalism would create a result that’s just too unpalatable for a conservative Republican.
Unfortunately, Barnett’s article goes off-track in trying to defend the U.S. Constitution’s “legitimacy” as he also did in his recent book (which I have critiqued here and here). But the first ten pages are must-read material for anyone interested in these issues, especially those of us occasionally tempted to admire any of our black-robed dictators in DC.
