Catherine Langford examines the writings, speeches and opinions of the former Associate Justice Antonin Scalia, analyzing just how well he clung to his idea of textualism.
Since she was a graduate student, Catherine Langford has been fascinated with the writings and opinions of former Supreme Court Justice Antonin Scalia. Over the next 15 years she became somewhat of an expert on Scalia to a point that when the justice died of natural causes at age 79 at a ranch outside of Marfa in 2016, Langford's friends outside of Texas called her to check on her and ask if she knew anything about it.
That is the dedication that Langford, an associate professor in the Department of Communication Studies in the Texas Tech University College of Media & Communication, has given to the subject of the charismatic but controversial former justice. Her knowledge of Scalia was so extensive that it often put her on both sides of the political spectrum.
“When I'm with my church group, I'm probably considered a raging liberal,” Langford said. “But when I go to an academic conference, I am a raging conservative. In my own ideology, I'm much more of a conservative being born and raised in Texas, but this conservative justice just appealed to me, making me ask, ‘How do you understand the law and what is the right way to do it, if there is a right way?'”
Although Scalia was entertaining on the bench, his opinions – and more specifically his reasoning behind some of those decisions – often drew sharp criticism. Scalia was known as a justice who used textualism, which is the interpretation of laws strictly by the wording of the U.S. Constitution.
As Langford points out in her new book, “Scalia v. Scalia: Opportunistic Textualism in Constitutional Interpretation,” the former justice seemed to use textualism to fit and justify an already-formed opinion on the matter. This was evident not only in his judicial writings, but also in the speeches and other extrajudicial pieces he penned.
“My book starts with his conservative ideology and wanting to know what does that mean for constitutional interpretation, how do we understand the constitutional text and then how does that impact our lived experience,” said Langford, who also is pursuing a jurisdoctorate through the Texas Tech School of Law. “Just him and the way he wrote were very entertaining. He goes through oral arguments and gets twice the laughs that other justices get. His humor shows up in his opinions, too. He could be hateful as well, which made him the justice everyone loved to hate.”
Finding his writings
The first chapter of Langford's book examines everything she could find about Scalia's extralegal writings – anything he wrote for the Law Review or speeches he gave. The issue with finding his speeches, she said, is that he insisted on not being recorded when giving a speech.
Her research started when the internet was still fairly young and not as populated with information. So finding Scalia's speeches was difficult. A few have been transcribed and published on websites, as part of a series or symposium. Scalia's son, Christopher, threw Langford a curveball just before her book was to come out by publishing his own book of his father's speeches.
Nevertheless, she was able to compile a good number examples of his speeches and writings and focused on how the former justice interpreted the Constitution, because that was the focus of many of his speeches. She then narrowed those opinions and writings to three areas of law of most interest to her – the Eighth Amendment (cruel and unusual punishment), the First Amendment (the religious establishment and free exercise clauses) and abortion.
“I looked at areas of law that I thought were clear, ambiguous or where the Constitution is silent,” Langford said. “The Eighth Amendment is a pretty clear clause where you're not supposed to engage in cruel and unusual punishment for people convicted of crimes. For the one that is ambiguous, I looked at the First Amendment. My ability to practice my faith is hindered by what we're allowed to do in a public sphere, although it's not supposed to be regulated. Then I looked at abortion because it is something the Constitution does not address.”
Langford was curious how Scalia actually interpreted the law.
“Scalia said we're supposed to understand the Constitution in a certain way, but how did he actually interpret it in these three areas of law?” Langford said.
Do as I say, not as I do
After examining his writings, speeches and judicial opinions, Langford concluded that Scalia didn't follow his own directives when interpreting the law.
Instead, Scalia would use what Langford calls “opportunistic textualism,” or using textualism only when it fit his already preconceived opinion on a certain matter. In essence, Scalia often used the law to fit his personal opinion instead of letting the law form the opinion.
“I only looked at those three areas of law and what I found in the cruel and unusual punishment cases and the religious clauses cases is 100 percent of the time he violated his own rules and didn't do what he said should be done,” Langford said. “The only time that maybe I'll give it to him is in the area of abortion, when he said the Constitution is silent and so the states should decide. That seems fair, but it also seems problematic that he can only apply textualism to something that is absent, not a positive right. He's doing it only in the negative textual space.
“He would say he was always true to textualism or originalism, or his version of the combination. I would say he was never true, except maybe when it came to abortion – when the Constitution was silent – but that's not an actual positive application in a material existence of a law. I can't find one example of when he did.”
In the area of cruel and unusual punishment, Langford said, Scalia argued that the key to interpretation of that law is the word “and.” Scalia separated the two phrases cruel and unusual as separate aspects, saying that a punishment can be cruel without being unusual or can be unusual without being cruel and still be legal. In his view, it's considered unlawful only when it is both cruel and unusual.
Langford points out in the book that when you read Scalia's written opinions on the law, he focused more on the cruelty of the crime committed, putting the focus on the person who committed the crime and not addressing punishment at all.
“He focused on the cruelty of the crime and how horrific and violent it was,” Langford said. “So opportunistic textualism is really a sleight of hand with judicial interpretation, because if you're not paying attention, you will say to yourself, ‘That is cruel,' while losing sight of the fact that the amendment focuses on punishment, not the perpetration of a crime.”
Langford said Scalia also used opportunistic textualism to derive the exact meaning of unusual when it came to punishment. Because he was a textualist, he postulated with his opinions that unusual was only what was illegal at the time of the founding of the country, and not what most people today would considered atypical forms of punishment.
That meant that forms of punishment, such as the rack or other forms that today would be considered forms of torture that existed in the 1700s, would be illegal. Any form of punishment developed since then, including the gas chamber or lethal injection, would not be illegal.
“Even if only one state uses that form of execution, even if it is unusual, Scalia would argue it's OK,” Langford said.
Another example of Scalia's use of opportunistic textualism was his dissenting opinion in the case of Locke v. Davey. In that case from 2004, a college student in Washington state received a scholarship from the state. Students who enrolled in a state institution of higher learning were eligible for the scholarship, but it excluded students who pursued studies in theology. When the student declared a double major that included pastoral ministries, the scholarship was revoked.
The statute was upheld under the establishment of religion argument in the First Amendment, and the student lost his case in the Supreme Court by a 7-2 vote. Being a religious man, Scalia, in his dissent, made the case that the student in question was a religious minority, even though the student was a Christian, the prevailing religion in the United States.
“Scalia reframed the student – a white, male, heterosexual, evangelical Christian – as a minority because the student believed so fully in his religion that he was going to major in religious and pastoral studies,” Langford said. “So that is a good sleight of hand as well.
“It's definitely fitting opinion to law. Scalia knew what his perspective was on something, then he would figure out a way to write his decision in such a way that the law justified his opinion.”
Langford said some of Scalia's speeches also dealt with his opinions regarding the Second Amendment, though she did not focus on that area of the law in her book. She says Scalia argued that how the amendment is phrased, and where punctuation is used, guarantees everyone the right to own a firearm.
Influence beyond the bench
Scalia's appointment moved the philosophical needle of the Supreme Court farther to the conservative side than it had been previously, which was reflected in his opinions and some of the court's rulings.
But his focus on originalism and textualism also affected the way law schools approached instruction in constitutional law courses. Langford said that, before Scalia's appointment, textbooks used in constitutional law courses did not have the Constitution in them, and if they did, it was in the back of the book. Now, the Constitution is the first thing in most constitutional law texts.
His views also have affected the ideology of other justices.
“When Elena Kagan, a current sitting justice, was asked about how she would interpret the Constitution when she was up for Senate confirmation, she said, ‘We're all textualists now,'” Langford said. “So to a certain extent, Scalia's focus on the text of the Constitution and talking about it has forced all the other justice to grapple with the issue of constitutional interpretation as well.”
Langford said Scalia's insistence on writing a dissent every time his opinion was not in the majority probably decreased the decorum of the Supreme Court. Moreover, when he would write a concurring opinion, he would chastise the Court for getting the decision right but its reasoning in reaching that decision was wrong. She argues that is a factor in why the Supreme Court comes forth with more 5-4 votes and why the recent retirement of Anthony Kennedy, considered the swing vote on many of these decisions, and who will replace him are such hot topics.
Scalia's speeches also encouraged other justices to begin espousing their opinions in their extra-judicial writings and speeches. Langford said Associate Justice Stephen Breyer's speeches focused heavily on civil liberties. On the other hand, it is well-known that Scalia and liberal Associate Justice Ruth Bader Ginsberg were very good friends despite their polar opposite ideologies. At least with Ginsberg, Scalia's opinions and actions were not seen as personal.
“They all saw Scalia's jurisprudence as this battle of wits and as a matter of persuasion; how Scalia was trying to persuade the public of his opinion,” Langford said.
Scalia's influence will certainly have an impact in the coming months as the Republican-controlled Senate begins the process of confirming Brett Kavanaugh, the second Supreme Court nominee put forth by President Trump following Kennedy's retirement at the end of July – an appointment that could shape the ideology of the Supreme Court for the next generation.
“He was very successful if you look at the consequences of his advocacy, namely when we talk about the Constitution and constitutional law textbooks, and Kagan saying they're all textualists and they have to consider the Constitution first,” Langford said. “The question is, where do they go from here?”