The Essential Scalia: on the Constitution, the Courts, and the Rule of Law Edited by Jeffrey S. Sutton and Edward Whelan

• Jurisdiction: United States,Federal,California
• Citation: Vol. 34 No. 1
• Publication year: 2021
• Author: Reviewed by Dan Lawton
• topic: Constitutional Law

The Essential Scalia: On the Constitution, the Courts, and the Rule of Law Edited by Jeffrey S. Sutton and Edward Whelan

Reviewed by Dan Lawton

Dan Lawton is a member of California Litigation's editorial board. He is senior counsel with Klinedinst PC, where he practices litigation in the firm's appellate and professional liability groups.

As a law student, I had amazing luck. My law school was walking distance from the U.S. Supreme Court. During my first year, my classmates and I sometimes sat in the gallery and tried to soak it all in. There we watched as the same Justices whose opinions we read in Con Law engaged with the lawyers at the lectern. During one hearing, my friend Julie Grohovsky leaned over and offered an observation about Sandra Day O'Connor. "She is so into federalism," Julie whispered.

So was the late Antonin Scalia.

In "The Essential Scalia: On the Constitution, the Courts, and the Rule of Law" (Penguin Random House 2020), editors Jeffrey S. Sutton and Edward Whelan offer a carefully-curated selection of speeches, essays, testimony, and opinions penned by the late Antonin Scalia, hero of the conservative movement and favorite punching bag of the left wing. To appreciate "The Essential Scalia," you need not identify with one group or the other. You need only be honestly curious about American law, judging, and the federal system created by the Framers of the U.S. Constitution.

Sutton and Whelan have divided their work into four sections, each devoted to a single theme: general principles of interpretation, constitutional interpretation, statutory interpretation, and review of agency action. Each section gives a sampling of Scalia's writings, abridged to eliminate citations, inconsequential quotation marks, and other clutter. The best of Scalia is here, with his thinking laid bare in bite-sized chunks and his writing chops on vivid display. Scalia's trademark flashes of wit, irony, and occasional sarcasm enliven the rigor, honesty, and thoughtfulness permeating his jurisprudence.

Scalia-lovers will find a lot to love here. Scalia-haters, if they be honest, will find something to love too, if they will only dare to admit it.

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Scalia's views on judging will come as no surprise to any informed citizen. He didn't think judges ought to arrogate to themselves decisions which are left to the people and their elected representatives, however meanly and stupidly the people and their representatives make those decisions. He insisted that judges not act like superlegislators. He despised thinking about judging as "playing common-law judge, which in turn consists of playing king -- devising, out of the brilliance of one's own mind, those laws that ought to govern mankind." He thought the job of judging requires judges to discern the meaning of statutes from their text and not from the supposed intentions of those who enacted them.

In 2015, the court decided Obergefell v. Hodges. In it, Anthony Kennedy, writing for a one-Justice majority, wrote that the Fourteenth Amendment demanded the nationwide abolition of state laws prohibiting same-sex marriage. In dissent, Scalia pointed not to human rights, or the moral and social dimensions of marriage. He pointed instead to the federal system set up by the Constitution. It, he wrote, had allowed eleven states to decide to expand the traditional definition of marriage. It had also allowed many more states not to. It had allowed advocates for both sides to keep pressing their cases in legislatures and on ballots, secure in the knowledge that they could negate a loss today with a win tomorrow. "That is exactly...