Justice Antonin Scalia: His Jurisprudence and His Impact on the Court
Released: 2016-03-18T00:00:00

O n February 13, 2016, Justice Antonin Scalia passed away unexpectedly at the age of 79, vacating a seat on the Supreme Court which he had held for nearly 30 years. Justice Scalia's lengthy tenure on the Court, coupled with his strongly held views on how constitutional and statutory texts are to be interpreted, led him to have significant influence on the development of the jurisprudence in various areas of law. He also was an active speaker and author outside the Court, having, among other things, recently coauthored a book which sought to articulate interpretative canons that would, in its authors' view, "curb—even reverse—the te ndency of judges to imbue authoritative texts with their own policy preferences" and "provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law." Like his approaches to many legal issues in his opinions, Justice Scalia's approach to statutory interpretation in this book has prompted debate both over its desirability, as a normative matter, and over the consistency with which Justice Scalia applied that approach, among other things.

This report discusses Justice Scalia's jurisprudence on key areas of law, as well as how that jurisprudence could be seen to have influenced the Court's approach to these subject matters. It begins with his views on two cross-cutting issues—the role of the judiciary and statutory interpretation—which highlight his well-known views about originalism, textualism, the importance of bright-line rules for judges to apply, and the proper role of the courts within the system of government established by the U.S. Constitution. It then addresses Justice Scalia's jurisprudence on fourteen separate areas of law, which are arranged in alphabetical order from "administrative law" to "takings," and were specifically selected as key areas of law where Justice Scalia's absence from the Court could result in a change in its jurisprudence. The report concludes with an Appendix that lists the Supreme Court cases from the October 2010 term through the October 2015 term—the time period since the last vacancy on the Court—in which Justice Scalia was part of a bare five-member majority, indicating the legal issues where Justice Scalia's absence from the Court could result in a shift in the Court's jurisprudence. A separate report, in preparation, is to address the opinions of Merrick Garland, currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and the President's nominee to fill the seat vacated by Justice Scalia. The two reports, taken together, may assist Members of Congress and their staff in assessing the impact that replacement of Justice Scalia might have upon the High Court's rulings.

Other CRS reports address the procedural issues that the vacating of Justice Scalia's seat poses for the Court, as well as the processes for nominating and confirming Supreme Court Justices. See CRS Report R44400, The Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court , by [author name scrubbed]; CRS Report R44235, Supreme Court Appointment Process: President's Selection of a Nominee , by [author name scrubbed]; CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee , by [author name scrubbed]; and CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation Vote , by [author name scrubbed].

Role of the Judiciary7

Nearly thirty years ago, at the swearing-in ceremony of Justice Scalia, President Ronald Reagan quoted Justice Felix Frankfurter, the famed defender of judicial restraint on the Court during the mid-20 th century, stating that "The highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law." Comparing then-Judge Scalia to Justice Frankfurter, President Reagan noted that the former federal judge's nomination to the Supreme Court was due in part to what the President perceived as his commitment to the principles of judicial restraint and deference to democratic institutions of government. While an open debate exists as to whether Justice Scalia's opinions on the High Court were truly divorced from his "personal pulls" and "private views," Justice Scalia's jurisprudence was deeply influenced by his concerns about the proper role of the judiciary in a democratic society. In some of his most famous dissents on the Court, Justice Scalia voiced pronounced criticisms about what he viewed as the majority's misapprehensions about the role of the federal judiciary. For example, in the 2014 term, in dissenting from the majority's holding that the due process and equal protection provisions of the Fourteenth Amendment require states to license marriages between two persons of the same sex, Justice Scalia, in a sharply worded opinion, described the majority approach as "a naked judicial claim to legislative ... power," amounting to an undemocratic "system of government that makes the People subordinate to a committee of nine unelected lawyers...." Put another way, Justice Scalia's jurisprudence was driven in part out of skepticism regarding the role of the Supreme Court and the "danger" that an unelected judge "will mistake [his] own predilections for the law," undermining the American democratic system.

To prevent the federal judiciary from overstepping its constitutionally prescribed role, Justice Scalia's judicial philosophy, particularly on questions of constitutional law, was undergirded by two related principles. First, Justice Scalia was a strong proponent of originalism, a mode of constitutional interpretation which posits that the Constitution's meaning should be derived from how its text was understood at the time of adoption. Advocating for originalism in the wake of the constitutional revolution of the Warren and Burger Courts, Justice Scalia complained that the Supreme Court had too often based its constitutional rulings not on the original meaning of the Constitution, but on broad, amorphous principles such as discerning what was a "fundamental value," tempting judges to imbue the Constitution with their own "political values." For Justice Scalia, originalism, by establishing "a historical criterion that is conceptually ... separate from the preferences of the judge himself," constrained the unelected judiciary. Justice Scalia's originalism was perhaps most famously displayed in the Court's 2008 decision striking down the District of Columbia's ban on handguns, in part, because the Court viewed the Second Amendment as originally understood to protect an individual right to possess firearms unconnected with service in a militia.

Second, Justice Scalia argued for the creation of concrete and discrete rules, rather than broad principles or balancing tests, in order to constrain judicial discretion in resolving legal issues. As Justice Scalia noted: "When ... I adopt a general rule ... I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle."

In this vein, Justice Scalia wrote several opinions establishing bright-line rules in areas of constitutional law formerly bereft of guidance and dissented in certain cases that relied on multipart tests or balancing approaches.

Nonetheless, while Justice Scalia argued for a confined role for the federal judiciary, the late-Justice did not argue for the wholesale abdication of the judicial role in the American constitutional scheme. Instead, where original understanding of the Constitution counseled for the exercise of judicial power, Justice Scalia defended the right of the judicial branch to serve as a check on democratic institutions. Indeed, in recent years, he criticized several opinions of the Roberts Court, where the Court, in Justice Scalia's view, "shirk[ed] its job" by refusing to address the constitutional questions raised by the case at hand. Moreover, Justice Scalia's adherence to originalism occasionally placed his views at odds with prior case law of the Court, particularly where the legal precedents, in Justice Scalia's view, departed from the original meaning of the Constitution. As a result, for Justice Scalia, the principle of stare decisis —that is, the doctrine that a "court must follow earlier judicial decisions when the same points arise again" in subsequent cases —was not a central precept in his constitutional philosophy. As such, while Justice Scalia was an advocate of judicial restraint, he did not advocate for an inactive judiciary.

Statutory Interpretation28

Justice Scalia was widely recognized as the most prominent practitioner and proponent of a text- and rules-based approach to statutory interpretation on the Supreme Court at the time of his death. He was widely associated, through his Court opinions and other writings, with textualism, an interpretative method that would construe statutes based on their text, context, and structure, rather than through extrinsic evidence of the intent or purpose of the Congress that enacted the statute. He also sought to articulate "canons"—or generally applicable rules—of statutory interpretation and, in deciding cases, advocated for "clear criteria" for judges to apply. Both aspects of Justice Scalia's jurisprudence on statutory interpretation can be seen as reflecting his beliefs about the proper role of the courts in the constitutional framework, as previously noted. These aspects of his jurisprudence can also be seen as reactions to the generally prevailing approaches to statutory interpretation since the New Deal, approaches that sometimes characterize judges as playing an active role in effecting statutes' purposes in changed circumstances. While questions have been raised about the implications of Justice Scalia's approach to statutory interpretation, as well as the consistency with which he applied this approach in his own opinions while on the Court, Justice Scalia is widely seen to have influenced the manner in which his colleagues on the Court and others approach statutory text, particularly through his focus on the "ordinary meaning" of words and his general skepticism of legislative history materials.

One key aspect of Justice Scalia's textualism was his purported focus on the ordinary meaning of words—or the meaning they would have had to persons at the time of the statute's enactment—unless the context indicates that the words bear a technical meaning. His opinion for the majority of the Court in MCI Telecommunications Corp. v. American Telephone & Telegraph Co. can be seen to illustrate this. There, in finding that language in the Federal Communications Act (FCA) permitting the Federal Communications Commission (FCC) to "modify any requirement" of the statute did not authorize "basic and fundamental changes in the scheme" created by the act, Justice Scalia emphasized that, at the time of the FCA's enactment in 1934, "modify" had "a connotation of increment or limitation," as demonstrated by contemporaneous and subsequent dictionary definitions of this word. He further responded to concerns, raised by Justice Stevens in dissent, about "rigid literalism" depriving the FCC of the "flexibility Congress meant it to have in order to implement the core policies of the Act in rapidly changing conditions" by noting that:

our estimations, and the Commission's estimations, of desirable policy cannot alter the meaning of the [FCA]. For better or worse, the Act establishes a rate-regulation, filed-tariff system for common-carrier communications, and the Commission's desire "to 'increase competition' cannot provide [it] authority to alter the well-established statutory filed rate requirements"....

This is not to say that Justice Scalia afforded congressional "purpose" no role in statutory interpretation. To the contrary, he recognized, as the goal of statutory interpretation, the formulation of "an interpretation of the statute that is reasonable, consistent, and faithful to its apparent purpose." However, for Justice Scalia, the statute's purpose was to be ascertained from its text, and an interpretation based solely upon the statute's alleged purpose could not prevail over unambiguous statutory text to the contrary.

The other key aspect of Justice Scalia's textualism was his refusal to consider legislative history materials—such as committee reports, reports of congressional hearings, and records of congressional debates—in construing statutory text. Some Justices have taken the view that consideration of such materials informs their understanding of a statute's meaning or the legislature's purpose. However, Justice Scalia rejected this view, in part, because of constitutional considerations, noting that "the only language that constitutes 'a Law' within the meaning of the Bicameralism and Presentment Clause of Article I, § 7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. " He also expressed concerns that legislative history materials are neither drafted by legislators nor considered by them when voting on bills, a view which may not be entirely in keeping with actual congressional practice as to certain types of legislative history materials. In addition, he feared that, if legislative history materials were to be used, judges could select, from among the wide range of legislative history materials on most topics, those materials that support their preferred policy positions, in much the same manner as a person "walking into a crowded cocktail party and looking over the heads of the guests to pick out [his] friends." Unlike some other practitioners of textualism, Justice Scalia even objected to the use of legislative history materials to confirm text-based interpretations of statutes on the grounds that such use provides a "false and disruptive lesson in the law" by fostering the belief that "an 'unambiguous and unequivocal' statute can never be dispositive." He did, however, express a willingness to consider legislative history materials to determine the contexts in which particular words had been used when ascertaining their ordinary meaning.

Administrative Law56

Justice Scalia's opinions on administrative law can be seen to reflect his broader text-based approach to statutory interpretation and his commitment to bright-line rules. For example, Justice Scalia's opinion for the Court in FCC v. Fox Television Stations can be read as illustrating his commitment to textualism. In that case, in response to allegations that an FCC decision was "arbitrary and capricious" under the Administrative Procedure Act (APA), the lower court applied a heightened review standard because the decision reflected a change from the agency's prior policy. That court required the agency to justify why the reasoning for the original policy was no longer "dispositive," and why the new policy "effectuates" the statute at least as well as the prior one. The Supreme Court reversed, ruling that the APA did not authorize a heightened form of review in such situations. Echoing a recurring theme in Supreme Court cases, Justice Scalia's opinion for the Court invalidated a lower court practice that imposed judicially created standards on agencies beyond the text of the APA. Justice Scalia, in particular, rejected the dissenters' view that heightened scrutiny is appropriate when reviewing the actions of independent agencies as the wrong solution to the important "dilemma posed by the Headless Fourth Branch" of government. In his view, "letting Article III judges—like jackals stealing the lion's kill—expropriate some of the power that Congress has wrested from the unitary Executive" would only "magnify" the problem.

In a similar vein, Justice Scalia resisted efforts to modify the doctrine of judicial deference to reasonable agency interpretations of ambiguous statutes—set forth by the Court in Chevron U.S.A. , Inc. v. Natural Resources Defense Council —in ways that he thought compromised its clarity. Though the doctrine of Chevron deference was established before he was appointed to the Court, Justice Scalia appears to have supported the doctrine as an important background principle against which Congress could legislate. For example, in United States v. Mead , Justice Scalia dissented from the majority opinion, which held that Chevron deference applies only if Congress intended for the agency to speak with the force of law and the agency's position "was promulgated in the exercise of that authority;" otherwise the agency could receive " Skidmore deference," which accords weight to an agency's position based only on its persuasiveness. He did so because, in his view, the majority's limitation upon Chevron deference would result in confusion since the Court had failed to articulate a clear rule regarding the circumstances in which Chevron now applied. Further, he noted that application of Skidmore deference was impractical, as it requires courts to accord agency positions "some vague and uncertain amount of respect."

Likewise, Justice Scalia objected to the Court's opinion in National Cable & Telecommunications Association v. Brand X Internet Service , which held that, when an agency interpretation qualifies for Chevron deference, a prior judicial interpretation of the statute may "trump" the agency's view only if "the prior court decision holds that its construction follows from the unambiguous terms of the statute." Aside from constitutional concerns, Justice Scalia emphasized that the Court's new rule, like the rule in Mead , would cause confusion for lower courts as they attempted to determine whether judicial decisions issued before Chevron or Brand X were suitably unambiguous in their holdings. A similar animating principle also appears in Justice Scalia's majority opinion in City of Arlington v. FCC , which held that Chevron applies even to an agency's interpretation of a statute that is ambiguous concerning the agency's jurisdiction. In this case, Justice Scalia reasoned that the dissent's proposed distinction between jurisdictional and nonjurisdictional questions was illusory. In his view, almost any question concerning an agency's authority could be framed as jurisdictional; thus, regardless of the question's framing, the ultimate issue will be "whether the agency has stayed within the bounds of its statutory authority." Consequently, when Congress authorizes an agency to administer a statute, and the agency promulgates an interpretation exercising that authority, Chevron applies. The alternative, he reasoned, was unworkable because it would have required courts to inquire de novo , as an initial matter, into whether Congress truly had delegated as to the particular issue before the court.

Finally, on an issue important not only to administrative law but to all of constitutional law, Justice Scalia had a profound effect on the modern jurisprudence respecting "standing," or the ability of a party to seek relief from a federal court. Even before he arrived at the Court, Justice Scalia had well-defined views on standing, viewing the doctrine as a means to prevent courts from overreaching into issues more appropriately resolved by the political branches. In a seminal 1983 law review article, he argued that the "judicial doctrine of standing is a crucial and inseparable element" of the broader principle of separation of powers, "whose disregard will inevitably produce ... an overjudicialization of the processes of self-governance." In several important cases, Justice Scalia successfully pressed his views on standing while on the Court. For example, he authored the majority opinion in Lujan v. Defenders of Wildlife , widely considered to constitute the foundation of modern standing law. In Lujan , the Court, noting that standing is "more difficult to establish[]" when the plaintiff is not the direct "object of the government action or inaction he challenges," denied standing to several organizations challenging an environmental regulation on the grounds that they had failed to allege adequately that they had sustained direct and personal injuries. In the cases that followed Defenders , Justice Scalia adhered to this approach, authoring several pivotal decisions that restricted access to the courts for those challenging administrative agency action and rigorously dissenting in decisions where the Court relaxed its approach to standing. With many of the Court's standing cases decided by relatively narrow margins and with a major standing case pending on the Court's current docket, Justice Scalia's absence from the Court could alter the future of the standing doctrine and, with that, the ability of plaintiffs to challenge the actions of administrative agencies.

Capital Punishment86

Justice Scalia was not on the Supreme Court when the Court issued its landmark death penalty ruling in Furman v. Georgia in 1972. Furman held that the Eighth Amendment's prohibition on "cruel and unusual punishment," made binding on the states by the Fourteenth Amendment, forbid capital punishment under the procedures then in effect, functionally prohibiting the imposition of the death penalty in thirty-nine states and the District of Columbia. While the Court reversed course on the moratorium created by Furman four years later in Gregg v. Georgia, declaring that the death penalty was not per se unconstitutional, the Court did so only after concluding that Georgia's sentencing procedures—which required a jury to take into account the particularized nature of the crime and the particularized characteristics of the individual defendant—prevented a defendant from being condemned to death "capriciously and arbitrarily." In other words, Furman and Gregg resulted in the Court actively scrutinizing the manner in which the states impose capital punishment.

Justice Scalia disagreed with much of the basis for the line of cases beginning with Furman , as those cases were not grounded in the original meaning of the Constitution, which itself contemplates the death penalty. Instead, the Court's recent capital punishment jurisprudence had, in his opinion, been misdirected by the 1958 case of Trop v. Dulles , which held that the Eighth "Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Over the years, Justice Scalia spoke for the Court, or concurred, when the Court declined to restrict the prerogatives of jurors, state judges, or state legislators with regard to the death penalty; he dissented when the Court did not—as was more often the case. In particular, Justice Scalia found himself consistently in dissent in several cases over the past fifteen years that restricted the use of capital punishment with regard to particular classes of defendants, such as minors, the cognitively disabled, and perpetrators of crimes where the victim's life was not taken.

In two recent cases where the Court determined that the petitioners had failed to establish that a particular method of execution offended the Eighth Amendment, Justice Scalia took issue with his fellow Justices' view that the Constitution prohibits capital punishment. For example, in Baze v. Rees , where a majority of the Court rejected a challenge to Kentucky's lethal injection protocol as a method of execution, Justice Stevens concurred in the judgment, voicing his opinion that the death penalty "is [a] patently excessive and cruel and unusual punishment violative of the Eighth Amendment" because of its "negligible" benefits to the state. In response, Justice Scalia wrote that Justice Stevens's declaration was "insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes [a] significant contribution to social or public purposes." Subsequently, in 2015, in a reprise of the Baze litigation, the Court split 5-4, with Justice Scalia in the majority, upholding Oklahoma's legal injection protocol. Justice Breyer, joined by Justice Ginsburg in dissent, argued that it was "highly likely that the death penalty violates the Eighth Amendment." In a pointed concurrence echoing his concurrence in Baze , Justice Scalia responded, arguing that the "Framers of our Constitution" left the propriety of the death penalty "to the People to decide," and in rejecting the views of the Framers, Justice Breyer did "not just reject the death penalty, he reject[ed] the Enlightenment." As a result, while Justice Scalia's views on capital punishment and the Eighth Amendment rarely commanded a majority on the Court, they are likely to figure prominently if the Court ever were to revisit Furman and its progeny.

Civil Liability105

Academic literature has identified, as an undercurrent of the Roberts Court's recent jurisprudence, a tendency for the Court to favor business interests, particularly in the context of limiting business's exposure to civil liability resulting from allegedly faulty products, discriminatory practices, or fraudulent activity. The Roberts Court's perceived willingness to curb access to civil remedies takes place against the backdrop of a broader political debate about the need for civil liability reform—including tort liability reform, with business groups arguing that frivolous lawsuits result in the needless loss of billions of dollars, while the plaintiffs' bar contends that curbing access to the courts deprives legitimate claimants of their right to be heard. Justice Scalia was a critical and unique voice in support of the Supreme Court's recent jurisprudence reducing the potential exposure of businesses and other defendants to civil suits. Specifically, his jurisprudence, in sharp contrast to that of his colleagues on the Court, eschewed relying on the Constitution to impose limits on the perceived excesses of the civil liability system, and instead generally relied on relatively broad readings of federal law to limit the scope of the state tort and other civil remedies often relied upon by the plaintiffs' bar.

Of particular note, Justice Scalia frequently interpreted federal law to preempt or displace state laws, including state common-law tort claims, which had the potential to expose civil defendants to significant monetary liability. Early in Justice Scalia's tenure on the Court, in cases like Cipollone v. Liggett Group and Medtronic v. Lohr , the Justices fractured on the question of whether clauses in various federal statutes that expressly purported to displace state laws that conflicted with the federal statute preempted common-law tort claims, as well as positively enacted laws such as statutes and regulations. In these cases, Justice Scalia, reflecting his preference for textualism, generally dissented from the majority, in part, by construing the statutes in question according to their "ordinary meaning" and arguing that federal statutes which preempt any contrary state "requirements" necessarily displace state tort law because tort claims effectively "require" compliance with certain common-law duties. However, in his later years on the Court, Justice Scalia began garnering majorities for his views on preemption and state tort claims. For example, in 2008, in Riegel v. Medtronic , Justice Scalia authored an opinion on behalf of a seven-member majority holding that a provision of the federal Medical Device Act barring any state "requirement[s] that [are] different from, or in addition to" the act encompasses and therefore preempts state common-law claims challenging the safety or effectiveness of medical devices that received premarket approval from the Food and Drug Administration. Importantly, the opinion in Riegel , reflecting a rules-based jurisprudence, established that, because "Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments," the use of the term "requirements" in a statute necessarily includes common-law duties. More generally, Riegel is indicative of a general trend of the Roberts Court wherein Justice Scalia authored or joined opinions that interpreted a federal law broadly in holding that it either explicitly or implicitly displaced state tort claims against product manufacturers, effectively reducing their potential financial exposure from juries sitting in one of the fifty states.

With regard to limiting civil liability exposure, Justice Scalia was also deeply influential in restricting the use of class action lawsuits, a procedural device that allows multiple individuals whose underlying claim against a party involve common questions of law or fact to resolve them in a single action. For instance, in 2011, in AT&T Mobility v. Concepcion , Justice Scalia, on behalf of a five-member majority, held that the Federal Arbitration Act (FAA) preempts a California judicial doctrine which allowed courts to hold unconscionable class action arbitration waivers in consumer agreements. Two years later, in American Express v. Italian Colors Restaurant , Justice Scalia, writing for the same five-member Court as in Concepcion , held that the FAA does not permit courts to invalidate a contractual waiver of class arbitration because the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery. In a slightly different context, Justice Scalia authored two majority opinions interpreting the Federal Rules of Civil Procedure that raised the evidentiary bar for proving that class certification is appropriate. Collectively, as one legal commentator noted, Justice Scalia's recent opinions on class action litigation have made "class certification increasingly challenging for plaintiffs." With various cases on the Supreme Court's docket this term and next potentially implicating class actions, Justice Scalia's absence could affect the outcome of these cases. In the wake of Justice Scalia's death, Dow Chemical reportedly settled a pending class action that was on appeal to the Supreme Court for $835 million, stating that it no longer believed it could prevail because of Justice Scalia's death. Dow Chemical's action here highlights Justice Scalia's importance not only for class action litigation, but also for civil liability issues on the Court more generally.

Civil Rights129

With respect to civil rights, Justice Scalia is generally seen to have taken an adverse view of cases involving the potential expansion of constitutional or statutory anti-discrimination protections for minority groups. In this area, he was perhaps best known for his strongly worded dissenting opinions in cases involving gay rights. Justice Scalia wrote a dissenting opinion in many of the gay rights cases decided while he was on the Supreme Court. These cases included (1) a ruling invalidating a Colorado constitutional amendment that barred localities from enacting civil rights protections on the basis of sexual orientation; (2) a decision holding that the due process privacy guarantee of the Fourteenth Amendment extends to protect consensual gay sex; (3) a ruling striking down a federal law that defined marriage as a union between a man and a woman; and (4) the Court's 2015 decision to constitutionalize the right of same-sex couples to marry. In general, Justice Scalia's dissenting opinions reflect a view that neither equal protection nor due process principles, as originally understood by the Congress that enacted the Fourteenth Amendment, provide a constitutional basis for striking down laws that involve "moral disapprobation of homosexual conduct," and that such decisions are best left to the democratic process.

Justice Scalia also generally took an unfavorable view of affirmative action in a variety of contexts. For example, he reliably voted to strike down governmental policies that established racial preferences for admissions to public elementary, secondary, and postsecondary schools, including in the Court's most recent pronouncement on the subject, Fisher v. University of Texas . In 2013, in Fisher , Justice Scalia joined a majority opinion that reversed and remanded a lower court decision upholding a race-conscious undergraduate admissions plan at the University of Texas at Austin, but he filed a separate concurring opinion indicating that he would have considered overruling a previous case that had upheld a similar affirmative action program because of his view that such racial preferences violate the equal protection guarantee of the Constitution. He also questioned the constitutionality of affirmative action in the minority contracting and employment contexts on the same grounds.

Finally, in the employment area, Justice Scalia's opinions produced mixed results. In some instances, his opinions favored employers in cases involving discrimination complaints by employees. For example, he authored opinions that rejected class action status for current and former female Wal-Mart employees who sued the company for pay discrimination; dissented from an opinion that kept alive an employee's pregnancy discrimination claim; and held that an employee's challenge of a racially discriminatory seniority system was barred by the statute of limitations, even though the discriminatory effects of the system remained in place. At other times, however, Justice Scalia ruled in favor of the outcome sought by employees. Examples include decisions recognizing that sex discrimination may encompass same-sex sexual harassment; finding that an employment discrimination law authorizes retaliation claims by third parties who have not personally engaged in protected activity; and upholding the religious discrimination claim of a job applicant who wore a headscarf.

Criminal Law and Procedure146

Justice Scalia's particular approach to constitutional interpretation—which relied on originalism and bright-line rules—prompted votes that can generally be seen as protective of the individual rights of criminal suspects and defendants, sometimes putting him at odds with a more traditional conservative judicial philosophy. While this trend applies to many areas, three in particular stand out: (1) the Fourth Amendment right to be free from unreasonable searches and seizures in the context of criminal investigations; (2) the Confrontation Clause right of criminal defendants at trial; and (3) the rule of lenity derived from the Due Process Clause.

Justice Scalia's solicitude for the individual rights of defendants was displayed in the 2012 global positioning system (GPS) tracking case, United States v. Jones , in which the government attached a GPS device to the underbelly of a suspected drug dealer's vehicle and monitored the vehicle's location for four weeks. Rather than relying on the Warren Court's more amorphous formulation of the Fourth Amendment from Katz v. United States , which typically asks whether the government's surveillance intruded on a target's reasonable expectation of privacy, Justice Scalia instead assessed whether the physical intrusion on Jones's car would have constituted a trespass at common law at the time of the founding. Looking to the text of the Fourth Amendment, which protects, among other things, an individual's "effects," and to early English common law cases, he observed that there was "no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." This holding, which favored the criminal defendant in a federal drug conspiracy prosecution, arguably expanded what constitutes a Fourth Amendment search, and would seem to favor criminal suspects in the future. In one notable example, one year after Jones was decided, Justice Scalia applied this physical trespass test in Florida v. Jardines to invalidate the warrantless use of a drug-sniffing dog on the porch of a residence. Looking to common law rules of trespass and licenses, he observed that "an officer's leave to gather information is sharply circumscribed when he steps off [the public] thoroughfares and enters the Fourth Amendment's protected areas," which, pursuant to the text of the Amendment, includes an individual's "house."

Justice Scalia also ruled in favor of criminal defendants in several important Sixth Amendment lines of cases. First, Justice Scalia's reading of the text and history of the Sixth Amendment also led him to discard the Court's then-prevailing test as to the requirements of the Confrontation Clause, which focused on the inherent reliability of a witness's out-of-court statement to determine its admissibility at trial. In Crawford v. Washington , Justice Scalia authored the majority opinion that instead relied on the common law right of cross examination at trial to assess the trustworthiness of a statement, an arguably more criminal defendant-friendly test. Justice Scalia, generally a proponent of jury trial rights, believed that the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." In more recent years, Justice Scalia vigorously defended the scope of the Confrontation Clause's protections against what he perceived as an effort to limit the Clause's reach by other Justices. For example, in one 2015 decision, Justice Scalia objected to "the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford ..." With Justice Scalia gone from the Court, the continuing vitality of Crawford and subsequent cases applying his trial-based approach seems questionable. Second, Justice Scalia's concern for the jury rights of defendants—what he called "a fundamental reservation of power in our constitutional structure"—led him to become the fifth vote in the Court's landmark ruling in Apprendi v. New Jersey and author the 5-4 opinion in Blakely v. Washington , which generally hold that facts that increase the maximum punishment to which the defendant is subject must be determined beyond a reasonable doubt by a jury and not a judge. These rulings paved the way for Booker v. United States , which made the federal sentencing guidelines discretionary, rather than mandatory, and have worked a profound shift in how criminal prosecutions operate on a day-to-day basis.

Similarly, Justice Scalia can be seen to have sided with the defendants when the criminal law in question was found to have been written too vaguely to provide sufficient notice of the conduct the law prohibits. The most recent example of this approach was his majority opinion in J ohnson v. United States , in which the Court invalidated the so-called "residual clause" of the Armed Career Criminal Act (ACCA), which imposed a 15-year mandatory minimum sentence on any person who possessed a firearm after having three previous convictions for "violent felonies." In several prior cases, Justice Scalia dissented from the application of the ACCA in specific cases on the grounds that the "[i]mprecision and indeterminacy" of the term "violent felonies"—which the statute defines to "involve[] conduct that presents a serious potential risk of physical injury to another" —was "inappropriate in the application of a criminal statute" on which "years of prison hinge[]." In Johnson , Justice Scalia relied on the rule of lenity—which serves to require Congress to write laws with sufficient particularity to give "fair notice" of what conduct is prohibited—to invalidate the ACCA's residual clause, noting that "[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process."

Environmental Law170

Justice Scalia is widely viewed to have had an enormous influence on environmental law, which will continue to be felt in ongoing and future litigation. His perspectives on environmental issues were shaped, in part, by his broader views on federalism, separation of powers, and statutory interpretation. One of the main sources of Justice Scalia's impact on environmental law is his jurisprudence on the topic of standing. In his influential majority opinion in the 1992 case Lujan v. Defenders of Wildlife , Justice Scalia clarified limits on when environmental groups and other groups have standing to challenge or enforce laws or regulations in federal court. Building on earlier cases, the principles set forth by Justice Scalia in Lujan require plaintiff groups to make specific allegations establishing that at least one identified member has suffered or would suffer concrete and particularized injury caused by, or fairly traceable to, the act challenged in the litigation, and that this injury is redressable by the court, limiting the impact of citizen-suit provisions in several environmental laws. Justice Scalia also shaped the relationship between environmental law and property rights with his decisions defining regulatory takings under the Fifth Amendment of the U.S. Constitution. In Lucas v. South Carolina Coast Council , Justice Scalia articulated a rule that, when a challenged regulation affecting land use (not otherwise grounded in background principles of nuisance law ) denies a landowner all "economically viable use of his land," it amounts to a government taking of the property—akin to an exercise of eminent domain—and the Fifth Amendment requires just compensation.

With respect to specific environmental issues, Justice Scalia issued decisions that served to narrow the scope or reach of federal environmental regulatory efforts on a number of notable occasions. For example, he authored the plurality decision in Rapanos v. United States , the latest in a series of Supreme Court cases explaining the extent of federal jurisdiction over wetlands and streams under the Clean Water Act (CWA). Justice Scalia's plurality opinion set forth a test requiring a "continuous surface connection" to "waters of the United States," which he further characterized as "relatively permanent bod[ies] of water connected to traditional interstate navigable waters." Since Rapanos , however, lower courts have looked primarily to the "significant nexus" test set forth by Justice Kennedy in his concurrence. Justice Scalia also rejected an environmental group's interpretation of the CWA in Entergy Corp. v. Riverkeeper , affirming the Environmental Protection Agency's (EPA's) reliance on cost-benefit analysis in setting national performance standards for power plant cooling water intake structures and providing for cost-based variances. On the other hand, Justice Scalia agreed with environmental plaintiffs in other cases, such as City of Chicago v. Environmental Defense Fund , in which the Court interpreted the Resource Conservation and Recovery Act (RCRA) and found that municipal waste combustion ash was hazardous waste subject to regulation.

On air and climate issues in particular, Justice Scalia often, but not always, expressed skepticism of EPA regulation. In 2001, he wrote the majority opinion in Whitman v. American Trucking Associations , which agreed with EPA's interpretation that the Clean Air Act (CAA) did not permit the agency to consider implementation costs in setting National Ambient Air Quality Standards (NAAQS). Justice Scalia disagreed with EPA in some later cases, including the 2015 decision in Michigan v. EPA , which remanded the agency's rule on Mercury and Air Toxics Standards (MATS) for power plants. Justice Scalia wrote for the Court that a provision of the CAA authorizing regulation of hazardous air pollutants from power plants only where "appropriate and necessary" did require threshold consideration of costs. On climate, Justice Scalia dissented from the 2005 decision in Massachusetts v. EPA , which held, by a vote of 5-4, that greenhouse gases (GHGs) were air pollutants under the CAA, but later joined the majority in American Electric Power (AEP) v. Connecticut , which held that EPA's authority under the CAA to set limits on GHG emissions displaced common-law nuisance lawsuits seeking to impose such limits. In 2014, Justice Scalia authored the majority opinion in Utility Air Regulatory Group (UARG) v. EPA , which upheld EPA's authority to regulate GHGs but struck down part of its stationary source permitting rule. In doing the latter, Justice Scalia appeared to scale back deference to agencies:

EPA's interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast "economic and political significance."

Notably, one of Justice Scalia's last votes on the Supreme Court was to join a 5-4 majority to stay, or suspend, the Clean Power Plan, EPA's rule to regulate GHG emissions from existing power plants, which is currently being litigated in consolidated cases before the U.S. Court of Appeals for the District of Columbia Circuit. Justice Scalia's language from UARG excerpted above has featured prominently in many of the briefs filed by petitioners challenging the rule. The Supreme Court's stay was widely interpreted as a sign that the rule would face skepticism if the Court were to review the decision of the appeals court, but with Justice Scalia's passing, some perceive the rule's prospects to have changed.

Federalism200

Justice Scalia viewed federalism, or the legal principles governing the division of power between the states and the national government, to be "one of the Constitution's structural protections of liberty." Perhaps his greatest contribution to the Court's federalism jurisprudence was his majority opinion in Printz v . United States . Printz , in conjunction with an earlier decision in New York v. United States , marked a sharp change of course in the Court's interpretation of the Tenth Amendment—a fundamental constitutional underpinning of federalism that reserves those powers not delegated to the federal government to the states, or to the people. In Printz , the Court struck down provisions of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks on prospective gun purchasers. Immediately prior to New York and Printz , the Court had generally relied on structural safeguards and the political process to limit Congress's exercise of its commerce power vis-à-vis the states, as opposed to judicial review. Justice Scalia, writing for the majority, solidified the anti-commandeering principles of the Tenth Amendment that continue to govern today by concluding "categorically" that the federal government may not compel state officials to "enact or administer a federal regulatory program."

However, Justice Scalia's view of the barriers to the exercise of federal power erected by the Constitution's "system of dual sovereignty" was not always "categorical." For example, while Justice Scalia joined the Court's landmark rulings restricting the scope of the commerce power in United States v. Lopez and Morrison v. United States , he did not find, as Justice Thomas did in dissent, that Congress violated federalism principles in Gonzales v. Raich , a case in which the Court held that the Commerce Clause empowered Congress to prohibit the local cultivation and use of marijuana even though such activity was permitted by state law. Similarly, in Branch v. Smith , Justice Scalia—writing for the majority—suggested that the Court's anti-commandeering principles apply less stringently when the Constitution "expressly" grants Congress powers over the states as it does under the "Times, Places and Manner" Clause of Article I, Section 4, which explicitly makes state control over certain aspects of congressional elections subject to alteration by Congress. Justice Scalia was also unwilling to accept what he viewed as "faux federalism" arguments in City of Arlington v. FCC , an administrative law case in which it was argued that the FCC had "asserted jurisdiction over matters of traditional state and local concern." Rather than adopting the federalism based arguments put forward by respondents, Justice Scalia viewed the case as one to be decided on principles of statutory interpretation.

Scalia's interpretation of the dormant Commerce Clause and the Eleventh Amendment's provisions regarding state sovereign immunity provides additional insight into his views on federalism. The Court has held that the Commerce Clause represents not only a grant of authority to Congress, but also a prohibition on states "imposing excessive burdens on interstate commerce without congressional approval." This implied "negative command" is known as the dormant or negative Commerce Clause. Justice Scalia viewed the doctrine as a "judicial fraud" and a "judge-invented rule." Relying on a strict textualist interpretation, he recently described his view in a dissenting opinion in Comptroller of the Treasury v. Wynne , asserting that "[t]he fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause." In contrast, the absence of a clear textual command did not influence his interpretation of the Eleventh Amendment, which provides that the "Judicial power of the United States shall not ... extend to any suit ... commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Justice Scalia has suggested that the Eleventh Amendment should be understood "not so much for what it says, but for the presupposition of our constitutional structure which it confirms." Accordingly, having acknowledged the Amendment's "precise terms" bar only suits against a state by a citizen of another state or a foreign state, Justice Scalia interpreted the background principles animating the Amendment to immunize states from a wide array of lawsuits, including claims brought by citizens of a state against that state. Relatedly, Justice Scalia joined in the Court's often narrow majorities that limited Congress's ability to abrogate state sovereign immunity and dissented in other cases where the Court upheld congressional repeals of state immunity from suits, defending a relatively broad principle that states generally cannot be sued absent consent.

Freedom of Religion223

Although Justice Scalia did not author many of the Court's leading opinions in cases on religious freedom, he wrote a number of concurring and dissenting opinions related to the Establishment and the Free Exercise Clauses. In these opinions, he regularly noted the role of religion in the history of the United States, particularly the role religion played in the lives of the Framers. The notion of separation of church and state, according to Justice Scalia, meant that the government could not establish an official church, require church attendance, or demand financial support for a church. However, under his view, the Establishment Clause did not extend so far as to require that references to religion be extinguished from public life and did not preclude the government from favoring religious practices. This understanding of the Establishment Clause was reflected in his opinions across various lines of cases that the Court considered over the past three decades, including school prayer, public displays of religious symbols, and private religious expression in public fora.

Early in his tenure—while the second most junior member of the Court—Justice Scalia authored the majority opinion in what is widely considered the most significant constitutional religious freedom case of his tenure on the Court: Employment Division, Department of Human Resources of Oregon v. Smith . That landmark decision clarified the standard of the Free Exercise Clause, effectively lowering the constitutional barrier to rational basis review and barring religious objection as a basis for exemption from neutral laws of general applicability. Historically, the Court had required that the government demonstrate a compelling interest in any action that would interfere with religious exercise. The majority opinion authored by Justice Scalia in Smith explained, however, that the Court "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

Justice Scalia's opinion in Smith was the impetus for Congress's enactment of the Religious Freedom Restoration Act (RFRA), which provides heightened protection for religious exercise by statute. Under RFRA, the federal government cannot substantially burden religious exercise unless it has a compelling interest and uses the least restrictive means to achieve that interest. In recent years, RFRA and its implementation in light of Smith have driven discussions about freedom of religious exercise, including that in the Court's latest landmark religion case: Burwell v. Hobby Lobby Stores, Inc. The majority in Hobby Lobby (joined by Justice Scalia) held that closely held corporations could claim protection under RFRA, allowing private businesses to seek accommodation or exemption from laws of general applicability if they satisfied the statutory requirements of RFRA. That opinion appeared to contrast with Justice Scalia's explanation of the holding in Smith , in which he wrote that religious objections from generally applicable laws generally were not protected by the First Amendment. Justice Scalia did not write separately to address the distinction between the holdings, but the cases were decided under different protections for religious freedom— Smith as a matter of the Free Exercise Clause and Hobby Lobby as a matter of statutory protection under RFRA. Hobby Lobby has reignited the debates that occurred following Smith , particularly those involving questions about the extent to which a person's religion may impact a successful claim for exemption from a neutral law of general applicability. Looking forward, another potentially important decision is pending before the Court in its current term, Zubik v. Burwell —a case providing the opportunity for the Court to further clarify the meaning of a "substantial burden" on religious exercise and the extent to which religious objectors may avoid compliance with laws of general applicability under RFRA. The case is expected to clarify the state of protections for religious exercise and, by extension, the legacy of Justice Scalia's opinion in Smith .

Freedom of Speech240

Perhaps no area of law was as greatly affected by Justice Antonin Scalia's tenure on the Court as the case law regarding freedom of speech. In the era prior to Justice Scalia's appointment, the Supreme Court, led by jurists like Justice William Brennan, broadened its recognition of the types of speech that the freedom of speech clause of the First Amendment protects from government restriction. During this time, the Court ended restrictions on speech that advocated the overthrow of the government; protected depictions of sex and indecency from some, though not all, government regulation; and expanded the right to criticize the government. This expansion of free speech rights by the Warren and Burger Courts often prompted dissenting Justices to argue, in their opinions, that free speech interests should be subordinate to the government's interests in protecting national security, imposing social order, and regulating public morality. Justice Scalia, in keeping with his rules-based approach to constitutional jurisprudence, embraced an approach to the First Amendment somewhat different from his predecessors. Justice Scalia was generally skeptical of the constitutionality of speech restrictions that could be interpreted as efforts by the government to prescribe "orthodoxy"—that is, instances where the government "pick[s] and choose[s] among" the ideas and viewpoints to favor and disfavor. And Justice Scalia's view that free speech interests generally do not yield to countervailing interests of the government has increasingly garnered the support of majorities on the Court, as the Roberts Court has relied on the First Amendment to strike down several federal and state laws on free speech grounds.

Justice Scalia's concerns with the regulation of speech based upon governmental disapproval of its message are illustrated by his majority opinion in R.A.V. v. St. Paul. In R.A.V. , the Court invalidated a city ordinance that prohibited certain fighting words, a category of speech long known to be proscribable under the First Amendment. The ordinance applied only to fighting words that aroused anger on the basis of race, religion, or gender. It was the singling out of fighting words with a particular message for special prohibition that Justice Scalia and the Court found objectionable. Under the challenged law, "One could hold up a sign saying, for example, that all 'anti-Catholic bigots' are misbegotten; but not that 'all papists' are, for that would insult and provoke violence 'on the basis of religion.'" To quote a line from R.A.V. that perhaps embodies Justice Scalia's general understanding of the government's limited ability to burden particular content: "[The government] has no ... authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules," even within a category of speech generally unprotected by the First Amendment. For Justice Scalia, such selectivity raises the specter of the government attempting to impose ideological orthodoxy, which the Constitution does not permit.

Justice Scalia's approach to the issue of campaign finance can be seen to reflect his general approach to free speech issues, rejecting most government regulations as being violative of the First Amendment because such regulations are based on the identity of the speaker, or limit the amount of political speech in a campaign, without serving the governmental interest of avoiding candidate corruption. In particular, he cautioned of the dangers of "incumbents' writing ... the rules of political debate," observing that the "first instinct of power is the retention of power." In Austin v. Michigan Chamber of Commerce , the Supreme Court upheld the constitutionality of a state law that restricted corporate campaign expenditures. Foreshadowing a landmark decision by the Court twenty years later in Citizens United v. Federal Election Commission , Justice Scalia dissented. Characterizing Austin as permitting the political speech of corporations to be regulated because state law provides them with "special advantages" by limiting the personal liability of individuals who form such associations, he argued that doing so was "incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the 'fairness' of political debate." Years later, in a concurrence to a pivotal case narrowing the scope of a federal law similarly restricting corporate campaign expenditures, Justice Scalia reiterated his criticism of Austin . In Federal Election Commission v. Wisconsin Right to Life, Inc. , he characterized Austin as "wrongly decided," with a "flawed rationale," and expressly rejected the principle that political speech could be restricted "based on the corporate identity of the speaker." When the Court issued its landmark 2010 ruling in Citizens United , the influence of Justice Scalia seemed clear. Quoting from his earlier opinions, the majority of the Court concluded that Austin "was a significant departure from ancient First Amendment principles," and expressly overruled it.

On the other hand, in a notable exception to his general disapproval of campaign finance regulation, Justice Scalia supported disclosure requirements. In McIntyre v. Ohio Elections Commission , where the Court struck down a state law prohibiting the distribution of anonymous campaign literature, Justice Scalia issued a dissent criticizing the majority for "discover[ing] a hitherto unknown right-to-be-unknown while engaging in electoral politics." Anonymity, he wrote, "facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the anonymity." Several years later, in Doe v. Reed , he continued his support for disclosure in the context of elections. In Doe , the Court upheld a state law requiring that all public records, including signatures on referendum petitions, be made available for public inspection and copying. In an often quoted passage from his concurrence in that case, Justice Scalia announced:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Despite his approval of disclosure requirements in the elections context, however, Justice Scalia's understanding of the freedom of speech clause of the First Amendment, more generally, made him skeptical of many restrictions on the content of speech, regardless of the political views expressed, arguably putting his jurisprudence at odds with his personal opinions in some cases. Perhaps most notably, Justice Scalia voted with the majority in Texas v. Johnson , a case striking down a law that prohibited the burning of the American flag. Years later, when reflecting on his vote in that case, he said, in typically colorful fashion: "If it was up to me, if I were king, I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail." Nonetheless, for Justice Scalia, the First Amendment's protections for freedom of speech necessarily, even particularly, encompassed speech critical of the government, compelling his vote in Johnson . Moreover, in the most recent freedom of speech majority opinion that he wrote, Justice Scalia's opinion provides additional evidence of his overarching skepticism of the constitutionality of government attempts to single out disfavored content for special restriction. In Brown v. Entertainment Merchants Association , he rejected California's attempt to regulate violent video games in the same way that governments are permitted to regulate material that is obscene as to minors. After recounting some of the more shocking images that might be encountered by a child playing one of these games, which Justice Alito had pointed to in a dissenting opinion, Justice Scalia wrote:

To what end does he relate this?.... Who knows?.... But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message. Thus, ironically, Justice Alito's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

Nonetheless, Justice Scalia was not a First Amendment absolutist and did recognize the existence of limits to First Amendment protections. For example, Justice Scalia would have held, in contrast to the majority of the Court, that the First Amendment does not protect commercial Internet pornography; public displays of nudity; or adult television channels that are "primarily dedicated to sexually-oriented programming." Justice Scalia also recognized the government's authority to regulate commercial speech more easily than other categories of speech. Moreover, while Justice Scalia was skeptical of government efforts to restrict speech by private individuals, he broadly defended the government's ability to speak through its power to decide what speech to fund. In addition, Justice Scalia argued for the government having broad powers to control speech within public institutions, including speech by public employees and speech by prisoners. In this sense, Justice Scalia's views on freedom of speech clause were not only influential on the Court, but also quite complex.

International and Foreign Law283

Justice Scalia was a vociferous critic of the use of contemporary foreign law and practice—including practices so prevalent as to arguably reflect a customary international legal norm—to inform understanding of the Constitution. He characterized this attitude as consistent with his originalist philosophy. While Justice Scalia believed that English common law sources could shed light on the meaning of constitutional provisions "written against the backdrop of 18 th -century English law and legal thought," he considered the contemporary practice of foreign states to be irrelevant to understanding the Constitution's meaning at the time it was adopted. Using contemporary foreign practice as an interpretative aid in applying the Constitution should be "rejected out of hand," according to Justice Scalia, not only because the U.S. system is sufficiently distinct from foreign systems to make such comparative analysis unhelpful, but also because it would be inappropriate for a U.S. court to set aside practices and traditions rooted in the American experience for those favored by foreign states.

Justice Scalia took a somewhat different view toward the relevance of foreign law and international custom when interpreting U.S. statutes and treaties. In the case of treaty interpretation, Justice Scalia opined that U.S. courts "can, and should, look to decisions of other signatories when we interpret treaty provisions," in part because these judgments may serve as evidence of the treaty parties' shared understanding of the agreement's meaning. On matters of statutory interpretation, Justice Scalia also indicated a belief that federal statutes should be construed in a manner consistent with the law of nations whenever possible. In his partial dissent in Hartford Fire Ins urance Co. v. California , for example, Justice Scalia disagreed with the majority's interpretation of an antitrust statute as reaching conduct occurring within a foreign state's jurisdiction. Application of the statute in such a manner, according to Justice Scalia, would have rendered it inconsistent with international legal principles of comity and respect for the sovereign authority of other nations. Justice Scalia argued that, whenever feasible, "statutes should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law."

Justice Scalia also opined that ratified treaties do not enable Congress to legislate on matters beyond the scope of its enumerated powers under Article I of the Constitution. At least since the Supreme Court's 1920 ruling in Missouri v. Holland , U.S. courts have recognized that Congress may enact legislation necessary and proper to carry out obligations imposed by a ratified treaty, including legislation on matters that have traditionally been regulated by the states and which could not be reached through legislation premised on Congress's enumerated powers under Article I. Justice Scalia disagreed with this long-standing interpretation, believing it "enables the fundamental constitutional principle of limited federal powers to be set aside by the President and Senate's exercise of the treaty power." He believed that the text and structure of the Constitution indicates that the Necessary and Proper Clause enables Congress to take action only to assist in implementing the President's power, under the Treaty Clause of Article II, to "make" a treaty, such as by enacting legislation intended to assist the President in negotiating and concluding an international legal agreement. But, in Justice Scalia's view, Congress may enact legislation only to implement the obligations of a treaty "made" by the President to the extent that such legislation is within the scope of its enumerated powers under Article I.

Right to Bear Arms298

In 2008, the Supreme Court decided District of Columbia v. Heller , a landmark decision wherein the Court addressed the nature of the rights conferred by the Second Amendment. By a vote of 5-4, the Court struck down the District of Columbia's provisions that effectively prevented handgun ownership. Justice Scalia authored the majority opinion, holding that the Second Amendment "protects an individual right to possess a firearm, unconnected with service in a militia, and to use the firearm for traditionally lawful purposes, such as self-defense within the home." Under an originalist approach to constitutional interpretation, the majority opinion separately reviewed the various clauses of the Amendment as they would have been understood during the Founding era. Based on a textualist reading of key phrases and an exhaustive discussion of the historical underpinnings of the Amendment, the Court held that the amendment "creates an individual right to keep and bear arms." The majority opinion affirmed its "individual right" interpretation of the Second Amendment by reviewing the Amendment as it was understood during the time period immediately after its ratification through the end of the 19 th century and comparing the Amendment against analogous rights in state constitutions. Justice Scalia's analysis concluded by noting that "the right secured by the Second Amendment is not unlimited" and that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." The types of aforementioned measures, though not an exhaustive list, are "presumptively lawful" regulatory provisions according to Heller .

Heller 's significance is two-fold. First, Heller with its reliance on and employment of constitutional history, is recognized as signaling the Court's embrace of originalism. It is notable that not only did Justice Scalia evaluate the Second Amendment under an originalist approach, but so did Justice Stevens, who wrote the dissenting opinion, which reached the opposite interpretation. Second, Heller arguably marks a new era in Second Amendment jurisprudence because the individual rights interpretation has paved the way for more constitutional challenges to federal and state firearms laws. However, lower courts, which have since entertained numerous Second Amendment cases, have been left with the task of addressing questions unresolved in the Heller decision, such as the standard of judicial review to be applied, and the nature of the rights protected under the Second Amendment. The Supreme Court has declined to review many Second Amendment cases, sometimes over the dissents of Justices Scalia and Thomas, who have expressed concern over how lower courts have, to date, been evaluating firearms laws under the Second Amendment. Justice Scalia's opinion in Heller marked a starting point for understanding the meaning of the Second Amendment, but it remains for his successor and the Court to clarify and reexamine the contours of this right.

Separation of Powers314

Long before Justice Scalia was appointed to the bench, Supreme Court Justices professed an understanding that the aim of constitutional separation of powers principles is the protection of liberty, not a means for ensuring efficient government. Two schools of thought have developed for approaching separation of powers disputes. The formalist interpretation focuses on the structural divisions in the Constitution with the idea that close adherence to these rules is required in order to achieve the preservation of liberty. The functionalist interpretation takes a more flexible approach, emphasizing the core functions of each of the branches and asking whether an overlap in these functions upsets the equilibrium the Framers sought to maintain.

Justice Scalia was a noted leader of the formalist tradition, insisting that the metes and bounds of the three coordinate branches of government are to be found in the Constitution and are not subject to adjustment by any of the branches, whatever pragmatic result a blurring of boundaries might be expected to achieve. He believed poet Robert Frost's line, "Good fences make good neighbors," to be an apt description of how the three branches of government ought to interact. He explained:

[T]he doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.

Justice Scalia's formalist approach to the separation and equilibrium of the three branches, with its focus on strict rules and structural safeguards, would not permit the resolution of interbranch disputes through deference to the political branches to determine the boundaries of their own powers. As he saw it, the Constitution does not permit any of the three branches to cede their respective authorities to one another any more than it permits one branch to aggrandize itself by seizing powers properly vested in another branch. Accordingly, he denied the possible existence of "lawful delegations of legislative authority," instead taking the view that a congressional "assignment of responsibilities" to executive branch officials is permissible only if adequately circumscribed. He resisted—this time with the support of at least a plurality of fellow Justices—what he considered as an effort to shift executive branch responsibilities to the Judiciary. He would not have tolerated what he viewed as the presidential acquisition of Senate turf under the Recess Appointments Clause by what he characterized as "adverse possession." Moreover, he rejected the primacy of the nominal location of an entity within a branch of the federal government as determinant of its place in the separation of powers scheme. Rather, he believed the Court should ascertain whether the powers to be exercised by a newly created government body are legislative, judicial, or executive in order to properly judge where it belongs in the constitutional structure. Permission to commingle these powers must, in Justice Scalia's view, be found in the Constitution itself and not divined through a case-by-case measurement of the degree of commingling to determine its propriety.

On the other hand, Justice Scalia recognized that the Constitution does not mandate a complete separation of each of the powers it assigns, but that some powers may be shared across branches in accordance with the document's text. For him, it was the type of power (law-making versus law-executing) rather than another division of authority (say, foreign affairs versus domestic policies) that mattered. He objected to the Court's "gerrymandering" in announcing a rule which characterized the presidential power to recognize foreign governments as an exclusive one, based on an assessment of "functional considerations"—namely, the asserted need for the nation to "speak with one voice" in foreign affairs —and the "weight of historical evidence," rather than abiding by the Constitution's separation of powers structure. A congressional act bearing on the exercise of executive power seemed to him authorized by the Constitution's Necessary and Proper Clause, so long as the act in question is both necessary and proper. He appears to have rejected the view that the Constitution's structure endows the President with exclusive authority simply because no express congressional power is enumerated.

Justice Scalia was equally likely to reach the same conclusion when the branch alleged to have overstepped its powers was the judicial one, even if those steps were taken in the service of enforcing other constitutional mandates. In one notable instance, he called out his colleagues' "Mr. Fix-It Mentality" evidenced by their efforts to "Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches' actions and omissions." In his view, the Court should neither recognize informal arrangements between the branches adopted for the purpose of enhancing their ability to work together or effectively exercising oversight over one another, nor should it rewrite policies adopted by the political branches to fit within constitutional bounds. The separation of powers principles prevalent in the Constitution ought, in his view, to speak for themselves, rather than be read to imply a more flexible structure to serve specific policy ends, whether such tweaking is viewed as trivial or monumental in scope.

Substantive Due Process339

During his tenure on the Court, Justice Scalia was a frequent critic of the substantive due process doctrine. This doctrine recognizes certain liberty interests that are not enumerated in the Constitution as so fundamental that any infringement of them is subject to heightened judicial scrutiny. In a series of cases, the Supreme Court concluded that certain legislative restrictions on such interests, like the freedom to marry and the ability to acquire contraceptives, could not survive heightened judicial scrutiny. In perhaps the most famous modern substantive due process case, the Court, in Roe v. Wade , maintained that a right of privacy, whether existing in the Fourteenth Amendment's concept of personal liberty and restrictions on state action, or in the Ninth Amendment's reservation of rights to the people, was broad enough to encompass a woman's decision to terminate her pregnancy. In contrast to the majority in Roe , Justice Scalia took the view that the Due Process Clause does not "guarante[e] certain (unspecified) liberties;" rather, for Justice Scalia, the Fourteenth Amendment "merely guarantees certain procedures as a prerequisite to deprivation of liberty."

Justice Scalia's views on substantive due process were informed, in part, by his concerns regarding the judiciary's competency to determine what rights warrant protection. As he observed in a concurring opinion in United States v. Carlton , "The picking and choosing among various rights to be accorded 'substantive due process' protection ... arouse[s] suspicion ... [and] unquestionably involves policymaking rather than neutral legal analysis." More broadly, in identifying what "liberty" interests are protected under the Fourteenth Amendment, Justice Scalia argued that such interests should be determined by referring to the "most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." For these reasons, throughout his tenure on the Court, Justice Scalia dissented from opinions where the Court held that the substantive component of the Due Process Clause prohibited the criminalization of homosexual sodomy or the restriction on same-sex individuals' opportunities to marry.

Justice Scalia was similarly critical of the Court's holding in Roe in several opinions involving the constitutionality of certain abortion procedures. Beginning in Webster v. Reproductive Health Services , the Court's 1989 decision upholding several provisions of a Missouri law that regulated abortion procedures, Justice Scalia expressed his belief that abortion is an issue that should be left to the political process. In a concurring opinion, Justice Scalia observed: "[T]he fact that our retaining control, through Roe , of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court." Justice Scalia reiterated his criticism of Roe one year after Webster was decided in Ohio v. Akron Center for Reproductive Health , a case involving Ohio's parental notification and consent requirements. Concurring in the Court's decision to uphold the requirements, Justice Scalia maintained:

I continue to believe ... that the Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution—not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so.

In a dissenting opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey , the Court's 1992 decision that reaffirmed Roe 's central holding, Justice Scalia asserted once again that the right to terminate a pregnancy is not protected by the Constitution. He also criticized the undue burden standard that had been developed by a plurality of the Court in Casey on the grounds that the standard was "as doubtful in application as it is unprincipled in origin...." Subsequently, in Stenberg v. Carhart , the Court's 2000 decision invalidating Nebraska's so-called "partial-birth" abortion law, Justice Scalia stated plainly in a dissenting opinion: " Casey must be overruled." Justice Scalia maintained that the Court should return the issue of abortion "to the people ... and let them decide, state by state, whether this practice should be allowed."

Had he remained on the Court through the entirety of the October 2015 term, Justice Scalia would have been in a position to consider the continued use of the undue burden standard in Whole Woman's Health v. Hellerstedt , a case involving the constitutionality of Texas's hospital admitting privileges and ambulatory surgical center requirements for abortion providers. Given his past statements on abortion and his skepticism of the undue burden standard, it is likely that Justice Scalia would have voted to uphold the validity of the state requirements.

Takings358

During his tenure on the Court, Justice Scalia authored opinions that can be interpreted as strengthening the protection of private property rights afforded by the Takings Clause of the Fifth Amendment of the U.S. Constitution. The Fifth Amendment limits government action by providing that private property shall not be "taken for public use" without "just compensation." For more than a century after its adoption in 1791, courts interpreted this "Takings Clause" as requiring compensation only when the government physically condemned property or caused a physical invasion of property (e.g., by constructing a dam that results in the flooding of private property). Then, a series of cases in the 20 th century expanded the application of this clause to so-called "regulatory takings," whereby a government restriction on the use of property devalues the property without a physical taking or condemnation. During his first few years on the Court, Justice Scalia authored two important opinions favoring landowners and restricting the ability of the government to devalue landowners' property without compensation.

The first of these decisions was Nollan v . Coastal California Commission . In Nollan , a property owner challenged a state commission's decision to condition the issuance of a permit to develop a beachfront property upon the granting of an easement to allow the public to pass through the property to access the public beaches to either side. The property owners argued that the condition mandating the granting of an easement across their beachfront amounted to a taking of their private property without just compensation in violation of the Fifth Amendment. The Court, in an opinion authored by Justice Scalia, agreed, ruling that conditioning the issuance of a construction permit upon the landowners' agreement to grant an easement across the property constituted a taking of private property and, thus, could not be accomplished without just compensation. Justice Scalia's opinion in Nollan was notable for the concise test it articulated for new conditions that limit or burden the enjoyment of property: that the regulation or condition must be "reasonably related to the public need or burden" created by the use and enjoyment of that property. Additionally, while the decision in Nollan may at first have had limited applicability due to the unique fact pattern in that case, Justice Scalia's decision formed the basis for subsequent notable takings decisions, including the "rough proportionality" test for evaluation of zoning ordinances and land use conditions articulated in Dolan v. City of Tigard , which require the government to show not only a nexus between the exaction and the harm resulting from the development, but also that the exaction is "roughly proportional" to the harm, in order for a condition or other "exaction" on private development to stand.

While Justice Scalia's majority opinion in Nollan helped to inform subsequent Court jurisprudence on takings law, his most well-known opinion in this sphere came five years later in Lucas v. South Carolina Coastal Council . In Lucas , the Court heard a claim brought by the owner of property on a South Carolina barrier island who was prevented from building homes on his property by a state law enacted after his purchase. The property owner alleged that the law deprived his property of economically beneficial use, thus effectuating a taking of private property requiring the payment of just compensation under the Fifth Amendment. Writing for the majority, Justice Scalia first established that government action depriving a property owner of all economically beneficial use of the property amounted to a taking for which just compensation was required. He turned next to previous Court decisions that had ruled that "harmful or noxious uses" of private property may be restricted or regulated by the government without necessitating compensation pursuant to the Takings Clause. However, Justice Scalia rejected the applicability of this argument in a case where a "total regulatory taking" has occurred. Instead, he ruled that, "where the State seeks to sustain regulation that deprives land of all economically beneficial use, ... it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with."

This test authored by Justice Scalia requires courts to delve into applicable nuisance and property law principles and any other applicable common-law principles in order to determine if a new regulatory action resulting in the loss of all economically beneficial use of the property simply duplicates a result "that could have been achieved in the courts—by adjacent landowners ... under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." If not, a taking has occurred and just compensation is required.

The Nollan and Lucas decisions represent Scalia's most notable forays into takings law. These opinions can be seen to have continued the Court's movement toward more expansive protection of private property rights under the Takings Clause. Justice Scalia's subsequent votes in takings cases arguably maintained this stance, including his joining of a dissent in Kelo v . City of New London , a case in which the majority upheld the exercise of eminent domain authority to transfer property from one private owner to another in order to further economic development as a valid "public use" under the Fifth Amendment, and his joining in the majority opinion last term in Horne v. Department of Agriculture , which relied on the Takings Clause to invalidate a regulatory scheme requiring raisin growers to set aside a certain percentage of their crop for the account of the Government, free of charge.

Appendix. Justice Scalia as a Swing Vote