Originalists should consider whether they really want another Scalia: An Assessment by Appeal Attorneys

There has been a lot of talk recently about who should replace the late Justice Scalia on the Supreme Court. Conventional thinking says that “Originalists” — i.e., those that believe that the Constitution should be interpreted based on its original meaning — want someone as similar to Scalia as possible. Indeed, a recent article ranked Trump’s shortlist of potential Supreme Court nominees based on their “Scalia-ness.”

This isn’t necessarily a bad approach for Originalists. Indeed, Scalia probably did more to popularize the jurisprudence of Originalism than any Supreme Court justice in history. However, there are reasons that Originalists may want to pause before nominating a carbon-copy of the late Justice. “This is particularly true if those Originalists want to see dramatic reductions in the federal administrative state, as do many appellate lawyers who have actively sought to limit the growth of the administrative state,” says appeal attorney Tim Kassouni who has been involved in many legal cases seeking such outcomes.

Unlike many Originalists, Scalia had great deference for the doctrine of stare decisis. Under that doctrine, Courts should, to the extent possible, avoid overturning past court opinions unless absolutely necessary. Stare decisis is built on the principle that the law should be predictable. Thus, if the Court’s interpretation is wrong long enough and often enough, subsequent courts shouldn’t radically change course.

With the exception of Scalia’s long-standing desire to overturn Roe v. Wade (which created a constitutional right to an abortion) Scalia had a respect for stare decisis not shared by his Originalist counterparts on the court, such as Justice Thomas. A prime example of this rift can be seen in the Court’s fractured opinion in Gonzalez v. Raich.

For Originalists and many appeal attorneys, Raich was an opportunity to overturn Wickard v. Filburn; one of the greatest overreaches of the New Deal Era Court. In Wickard, the Court held that Congress’ authority to regulate “interstate commerce” authorized the federal government to regulate the private consumption of wheat grown in only one state that was consumed on the very farm on which it was grown. For generations, Originalists had used Wickard as a prime example of a court departing from original meaning in order to satisfy the demands of the times. After all, it makes little sense to say that “interstate commerce” covers non-commercial activities occurring solely in one state.

Raich was identical to Wickard except that instead of wheat, the commodity at issue was medicinal marijuana. Justice Thomas jumped at the opportunity to undo Wickard. According to Thomas, the regulation in Raich was unconstitutional because “interstate commerce” means “interstate commerce”; end of story. The fact that Wickard had been on the books for more than 60 years didn’t matter.

In a surprise move, Scalia chose to merely nibble at the edges of the Court’s Commerce Clause, to the disappointment of many who “viewed the case as a great opportunity rein in a growing administrative state with minimal substantive limits,” says appeal attorney Kassouni. According to Scalia, the federal regulation of private marijuana consumption was constitutional for the same reason that the regulation of private wheat consumption was constitutional — it was necessary to regulate an interstate market in a fungible commodity. In doing so, Scalia weakened the Wickard decision, by limiting its scope to fungible commodities, but essentially left the wrongly decided case on the books.

In the aftermath of Raich some speculated that Scalia (a social conservative) had allowed his distaste for drug culture to override his Originalist principles. But that criticism may not be fair. Scalia had gone on the record on several occasions to express his views on stare decisis and his desire for stability in the law and incremental change. Given those principles, it makes sense that he would nibble at the edges of Wickard, rather than overturn it outright.

What Originalists must ask themselves now, is whether Raich is the type of decision they want from Scalia’s replacement. Given that most Originalists talk of rolling-back the excesses of the New Deal Era Court, the answer may be “no.”