Justice Antonin Scalia, Constitutional Discourse, and the Legalistic State

AuthorRichard A. Brisbin
Published date01 December 1991
Date01 December 1991
Subject MatterArticles
West Virginia Universly
his appointment to the United States Supreme Court by
President Ronald Reagan, Antonin Scalia has established him-
self as a justice inclined to support the contemporary popular
definition of a conservative jurist. His opinions and voting patterns
have aligned him closely with the other Reagan administration appoin-
tees to the Court and with Chief
Justice William Rehnquist. Despite
occasional confounding opinions or votes, he has supported contempo-
rary conservative ideological positions on the scope of personal and
minority rights, the policy-making discretion of the executive, and the
rights of property owners (Baugh 1989; Brisbin 1990; Kanner 1990;
King 1988; Moore & Fields 1988; Nagareda 1987; Rubin & Melone
1988; Wilson 1986: 1181-1203; Wyszynski 1989).
This article examines the content of Scalia’s jurisprudence through
the end of the 1989 term of the Supreme Court. Although the com-
mentary will shed light on constitutional law and theory in the era of
the Rehnquist Court and on Scalia, it is designed to encourage closer
attention to the language of the law when studying American appellate
courts. As illustrated by the example of Scalia, contemporary research
on the appellate judicial process tends to fall into two categories. One
category includes research that adopts an instrumentalist view of judi-
cial votes and opinions as conditioned by socioeconomic or political
relationships with the external world. The instrumentalist approach
appears today in studies of judges that link their behavior to variables
Received: September 14, 1990
First Revision Received: January 3, 1991
Second Revision Received: January 31, 1991
Accepted for Publication: February 4, 1991
NOTE: This is a revised version of a paper delivered at the 1990 Annual Meeting of the
American Political Science Association. The author would like to thank Edward
V. Heck for his comments on the original paper.
~ The analysis draws its information as far as possible from Scalia’s off-the-bench
articles and speeches and his solo dissenting and concurring positions and avoids
the use of opinions that might be regarded as the views of a mjority opinion
coalition. The analysis also assumes consistency in his view over time, an assump-
tion largely confirmed by close review of his public statements since 1970.

or life experiences outside their court (for examples, see Baugh 1989;
Brisbin 1990; Kanner 1990; Moore & Fields 1988; Rubin & Malone
1988). The other category of research, that of legal scholars, evaluates
appellate court doctrine as a product of a closed system of legal dis-
course entirely free of political determination (for examples, see Baker
Wheatley 1988; Gelfand &
Werhan 1990; King 1988; Marshall
1989-90; Nagareda 1987; Scatera 1987; Wyszynski 1989).
This article, relying on an approach suggested by the French
sociologist Pierre Bourdieu (1987), examines how the votes and opin-
ions of a justice are a function of the logic and discourse of his &dquo;field
of practice.&dquo; The field of practice is a partially autonomous political
space relatively independent of external pressures and determina-
tions. It has its own languages for defining political institutional
roles and rights and its own methods for addressing problems. The
legal struggles about the language of the law within a field of judi-
cial practice represent a political struggle about the construction of
the state. However, the struggle is a limited one. It is a struggle
between the distinctive institutional roles, rights and legal methods
comprising justices’ use of language or pattern of &dquo;discourse.&dquo; For each
justice these patterns define an ideology which limits the range of
choices acceptable in deciding cases (Bourdieu 1987: 814-23; Brigham
1987: 28-33; Kahn 1987b: 20-23; Kahn 1989: 279). Consequently,
the ideologies of the justices in their field of practice serve to filter
out some external pressures, political environmental considerations,
and case-related political demands simply because these variables
cannot be encompassed with the discourse that they employ. The
justices’ ideologies, revealed in their language and discourse, serve
as an important intervening variable in the construction of Court
Although some scholars have examined the language of Supreme
Court justices in their field of practice from a political vantage point
(Brigham 1978: 92-158; Brigham 1984: 30-32; Brisbin & Heck 1991;
Heck 1990a, 1990b, 1990c, 1990d; O’Neill 1981), previous work has
emphasized how justices use differing language about a legal concept
(e.g., equality) or how the language about a legal concept develops.
This article proposes a different tack. It proposes to present holisti-
cally the discourse of a justice. It will not just describe a justice’s juris-
prudence ; it will offer a perspective on one justice’s vision of the legit-
imate functions of his field of practice. It will also provide an example
of how the a justice’s discourse can contribute to the discussion of legit-

imate public policies. Opinion language is thus a message to the pub-
lic about the range of legitimate political debate.
The first part of the article discusses Scalia’s general approach to
the Constitution in relation to other approaches to the text surfacing
within the field of constitutional legal practice. After distinguishing his
approach, the article will delineate his unique language for addressing
problems about the institutional process or his &dquo;polity principles&dquo; and,
second, his principles of rights (Brigham 1987: 57-59; Kahn 1987b:
5; Kahn 1989: 280). Then the discussion will elaborate his methodol-
ogy of judicial interpretation. In setting forth his jurisprudence, the
article will emphasize the unique formalism of his convictions about
the proper role of institutions, rights, and legality in the constitutional
scheme. These convictions comprise an ideology that affect his treat-
ment of claims about disadvantaged groups2 and the power of the
state. After reconstructing his ideology, the article will conclude with
comments on the value of studying a justice’s field of practice as an
analytical approach for use in the study of appellate judicial politics.
As a general approach to constitutional disputes, Scalia has relied
on the text of the Constitution. Yet, he is rarely concerned with the
history and the original intention of the text. Also rejecting literalism,
he has a healthy respect for the craft of judges in sorting out the mean-
ing of the text. The specific nature of Scalia’s textual approach is best
illustrated by comparing it to two other text-based approaches to the
constitutional interpretation. The comparison allows the placement of
Scalia’s language and discourse within the field of American appellate
judicial practice.
Scalia and Originalism
The rigid &dquo;originalism&dquo; of the constitutional theory of Robert Bork
(1990: 143-60) is for Scalia a &dquo;lesser evil&dquo; than any judicial interpre-
tation of the Constitution which rests solely on fundamental values or
other criteria. Nevertheless, Scalia differs with Bork’s notion of fixed
constitutional intent in three respects. In one respect, he is less confi-
dent than Bork that the original meaning is knowable and can be cor-
Following Heck (1990b: 22-23), I use the term disadvantaged group rather than the
more common
but misleading term "suspect class" or the older and less accurate
"discrete and insular minorities."

rectly applied by busy judges (Scalia 1989b: 856-61; compare Bork
1990: 161-67). Second, Scalia accepts that originalism must be adul-
terated with the doctrine of stare decisis. Unlike Bork (1990: 155-59,
1748-85), he recognizes that some words in the text lack an original
meaning and that some clauses are open-ended and contain an evolu-
tionary intent discoverable through the consideration of previous judi-
cial decisions (Scalia 1985a: 708-9; Scalia 1989b: 861-62).
Third, Scalia defers to the policies adopted by executives and leg-
islatures in response to majority demands. Leaving the definition of
law rest on majority sentiment means that law cannot not rest on an
abstract moral base (Scalia 1986a). Like Chief Justice Rehnquist (Davis
1989: 26-28), Scalia finds values about controversial moral subjects
like abortion and the &dquo;right to die&dquo; to be authoritative only when
accepted by a popular majority (Scalia 1985a; Webster v. Reproductiae
Health Services 1989: 3064-65, conc. & diss.; Hodgson v. Minn. 1990:
2960-61, conc. & diss.; Ohio v. Akron Centerfor Reproductive Health 1990:
2984, conc.; Cruzan v. Director 1990: 2859-63, conc.). In contrast to
Bork, who harshly derides the moral relativism of contemporary intel-
lectuals and judges, a pragmatism marks both Scalia’s moral theory
and his reading of the constitutional text. Bork thinks that law should
rest on &dquo;traditional views of morality&dquo; and the neutral principles that
he alleges exist in the constitutional text (Bork 1990: 241-65). Unlike
Scalia, he never admits that he would be governed primarily by the
majority’s values. Because of these three differences with Bork, Scalia’s
&dquo;faint-hearted&dquo; originalism permits more judicial discretion in reading
the constitutional text. Unlike Bork, who dreams of a world in which
constitutional disputes are about law and are disposed of by legal pro-...

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