Sunday, April 03, 2005

On Scalia on Originalism and Stare Decisis

Usually, I don't read all of a New Yorker article--they are as long as my attention span is short. But, last week's issue (March, 28) had an interesting about Antonin Scalia, touching on things like his judicial philosophy and relationships with other members of the Court. In the process, the article argues that Scalia's unwillingness to compromise on his ideas and ideals has hindered his ability to be a sucessful justice, as measured by one's ablity to produce opinions that can appeal to a majority of the Court.

Part and parcel of Scalia's persona is his committment to the judicial philosophy, originalism. Here's how the article describes Scalia defining the concept:
At 4:30 P.M., Scalia strode heavily to the lectern, his head thrust forward. He has a square, ruddy face; thick black hair with a patent-leather sheen; gold-rimmed glasses; and an almost daunting air of vigor. He began explaining that, as a jurist, he is an "originalist"--or, as he put it, in his habitual tone of pugnacious beleaguerment, one of "a small minority who believe in a philospohy called originalism." This cohort was so small, he said, that you could "fire a cannon loaded with grapeshot in the faculty of any major school"--an experiment that Scalia might enjoy trying--"and not hit an originalist."

Originalists, he went on, feel that judges should adhere to the precise words of the Constitution, and believe that the meaning of those words was locked into place at the time they were written.
I've read elsewhere, however, that Scalia respects stare decisis:
But Scalia's pointed comments to Foskett [a biographer of Clarence Thomas] complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

Stare decisis is a fancy Latin term that stands for a bedrock proposition of U.S. law: that the Supreme Court will uphold precedent and not disturb settled law without special justification. As Justice Thurgood Marshall explained for the court in 1986, stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion."
Is there a tension between Scalia's committment to originalism and his willingness to suport judicial precedent? If the Constitution and laws have set meaning, and the courts' previous interpretations are wrong, then can an originalist be particularly sympathetic towards the precedent?


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