Today in Washington, D.C. Justice Scalia spoke about his new book Reading Law: The Interpretation of Legal Texts (co-authored by Bryan A. Garner) at an event co-sponsored by the Federalist Society and AEI. He began by emphasizing that “All of the great early justices were originalists and textualists.” He said it was unfortunate that that tradition is rare in legal education: “Text is not taught in law schools. . . . Canons [of interpretation] are picked up haphazardly.” In his view, it is unfortunate that first year courses focus on the Common Law even though most law has been codified.
A great benefit of his approach to constitutional interpretation, he claimed, is that it is a system that makes room for flexible democratic politics, in contrast to the “living constitution” approach that results in rigid decisions. The justice had particularly strong criticism of living constitutionalists' appeals to “evolving standards of decency.” He explained that justices are in no position to know what those standards are. He joked, “I’m even afraid to ask.” Referring to the criticism that textualism requires judges to be historians, a role they are supposedly not good at, he continued, “If you don’t think that lawyers aren’t good historians, do you think they are good ethicists?”
Justice Scalia said he has seen progress in the acceptance of textualism. He said that when he joined the high court, briefs did not include any historical discussion at all. By contrast, history-based briefs in the Second Amendment Heller case could fill five volumes.
During the question-and-answer period, the justice said that George Washington was his favorite Founding Father: “It goes to show you that smarts ain’t everything. He wasn’t a genius. He wasn’t even a great general. . . . But he was the indispensable man” who refused to serve more than two terms as president.
As for advice to law students, he recommended that they take as many bread-and-butter courses as possible, and to avoid any Law and X courses, such as Law and Literature. He also would advise them, “Try to find a law firm where you can have a humane existence, “ so that they can contribute to their communities as volunteers and leaders. He said that he himself chose not to head to New York City after law school so as to avoid the law firm “sweatshops.”
In regard to the place of stare decisis in his jurisprudence, he explained, “I am a textualist, an originalist, but I am not a nut,” by which he meant that he does not take overriding precedent lightly. Much, but not all, precedent is “water over the dam.” He said he had a three-part test regarding whether he would overturn a prior decision: 1) How wrong was it?, 2) How well accepted was it at the time?, 3) Does it permit me to function as a lawyer? Roe v. Wade, he said, failed all three: 1) Even those who like the result admit it was a bad decisions, 2) It was and remains highly controversial, 3) When looking at how Roe was later reinterpreted in Casey v. Planned Parenthood, the "undue burden" test regarding when limitations on abortion are impermissible is an unworkable standard.