What baffled many conservatives was the concurring opinion by one Antonin Scalia, who sided with big government against a sane interpretation of the Commerce Clause. It was a surprising vote for the justice who once edited the deregulation‐inclined Regulation Magazine (now published by the Cato Institute).
Or was it?
Actually, no: Careful observers of Scalia could have spotted this vote coming a mile away.
Unlocking Scalia depends on knowing something about Scalia’s background, and something about his grand constitutional theory.
First, background. Scalia came to the bench predisposed to look out for the interests of “comprehensive” federal regulatory programs, like the DEA’s. He served as the head of the Department of Justice’s prestigious Office of Legal Counsel (OLC), which advises agencies about the scope of their powers. His time there plainly had an impact on him: Today, he is known to hire clerks who have spent time working at OLC. Scalia’s approach to administrative agencies—his belief in giving them a lot of leeway (in legalese, “deference”) when they apply law to fact—is consistent with the institutional outlook of a former executive branch lawyer.
But it’s unfair to paint Scalia as a simple executive branch stooge. Sure, his background may predispose him to sympathize with embattled agencies. But he votes against the President, too (see both his dissent in Hamdi v. Rumsfeld, where he castigated the Bush Administration for ignoring American citizens’ right to habeas corpus, and his revolutionary vote to upend the Federal Sentencing Guidelines in United States v. Booker).
A complete picture of the mind of Scalia must also take into account his theory of judging, laid out in a 1989 University of Chicago Law Review essay entitled “The Rule of Law as a Law of Rules.” In it, Scalia professes his dislike for rulings that give future courts broad discretion. That dislike colored his vote in Raich.
Scalia’s basic philosophy of judging is one of judicial restraint achieved by deciding cases, where possible, according to clear “rules” rather than vague standards. “When,” he says, “I adopt a general rule, and say, ‘This is the basis for our decision,’ I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my…preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.”
Thus, he writes, good judges should read the Constitution in a way that constrains future courts to a mechanical menu of decisions.
Scalia’s preference for rules carried the day in Raich. Remember: Before Raich, the Court’s Commerce Clause cases asked judges to brake Congress when it tries to regulate local conduct that doesn’t “substantially affect” interstate commerce. Yet, deciding when conduct “substantially affects” commerce is hardly a mechanical exercise. Taken seriously, it requires hard calls and may yield unpredictable results.
Scalia himself made this point in “The Rule of Law as a Law of Rules,” where he expressed “hope” that the Court would give up efforts to restrain legislation under the so‐called “Dormant Commerce Clause,” which asks courts to restrain state laws that burden interstate commerce. As he explained, deciding whether state laws “affect” interstate commerce “to an excessive degree” is a “standardless” inquiry.
And give credit where credit is due: Scalia’s reading of the Commerce Clause in Raich is pretty clear. It tells lower courts they should avoid inquiring whether regulated conduct “affects” “interstate commerce,” when Congress targets that conduct as part of a detailed regulatory scheme. That’s easy for courts to apply, because it guts the Commerce Clause like a fresh mackerel.
What should conservatives make of Scalia’s approach to constitutional interpretation? Here’s one big problem: Scalia’s brand of legal conservatism, in its quest for certitude, loses sight of what our constitutional system is all about. Consider: Is the American Constitution—with its baroque checks and balances, conceptually difficult system of “dual” sovereignty, and decentralized, fractious judiciary—well suited to promote predictability above all else? Hardly.
What’s the Constitution good for, then? Think liberty. It’s a quaint value in the eyes of many legal mandarins, but one whose promotion is evident on the face of the Constitution. Filled with open‐ended clauses that inspire endless debate, the Constitution invites litigation. Much of that litigation targets the government, since the broadest clauses are also those that set limits on what government can do. And that’s by design: In the hands of puckish Americans and occasionally bold judges, the Constitution raises the costs of government’s business, making America more difficult to govern. And liberty benefits. After all, a country in which officialdom is constantly hen‐pecked by litigious citizens must, of necessity, rely first and foremost on private ordering.
No doubt the temptation to contain our disorderly Constitution, by removing the messy, litigious parts, is strong for those, like Scalia, who equate law with rules. But, in the end, that urge is itself lawless. Scalia condemns judges who enact their preferences at the expense of the law as it has been declared. Perhaps it’s time to look in the mirror.