No one expects Supreme Court Justices to be completely consistent across the vast range of emotionally charged and controversial constitutional law issues they are called upon to decide. Moreover, some Justices, such as Stevens, O’Connor, and Breyer, reject grand theories of interpretation and favor a one-case-at-a-time approach to judging. Nevertheless, when Supreme Court Justices express strong preferences about proper and improper methods of constitutional interpretation, their opinions should be at least reasonably consistent with those positions.
Justices Scalia and Thomas have boldly and frequently made the case that they resolve constitutional law cases with a strong emphasis on the text and original meaning of the language of the Constitution. Although their ideologies have nuanced differences (such as their use of precedent and what evidence counts towards original meaning), both Justices in their opinions and in their off-the-Court writings proclaim that judges should leave their personal values out of constitutional interpretation and only overturn the decisions of more accountable political officials when required to by clear text or history. Both Justices, however, have consistently engaged in aggressive acts of judicial review based on personal preferences rather than text or history. It would take a book to catalog the many examples where Scalia and Thomas have rather obviously veered from their alleged disdain for the “Living Constitution,” but the cases below are representative and reflect broad rules of constitutional law adopted by these two Justices that prohibit elected officials from implementing important legislative objectives.
Justice Thomas wrote a concurring opinion in the Court’s latest campaign finance case arguing that virtually all laws that limit the spending of money on or for political campaigns are unconstitutional under the First Amendment. Although Scalia did not join that opinion, he too has voted to strike down almost every campaign finance law that he has been called upon to judge while sitting on the Court. In addition, both Justices have said they would prohibit Congress, the President, and every level of state and local government from employing any and all racial preferences. Both Justices would also prevent Congress from using state governments to help implement federal laws enacted pursuant to Congress’s enumerated powers, and they would stop most plaintiffs from suing any state for money damages because of the doctrine of sovereign immunity. In none of these examples, which cut a huge swath through constitutional law, and which significantly alter the ways both federal and state governments do business, did Justices Scalia or Thomas make persuasive arguments from either text or history. Thus, contrary to what Justices Scalia and Thomas would have you believe, for them, the Constitution is very much alive and kicking up a storm.