A Q&A with Rutgers Law Prof. Perry Dane on Justice Antonin Scalia and the Search for his Successor

Perry Dane is a professor of law at the Rutgers Law School.  He was previously on the faculty of the Yale Law School, and served as a law clerk to William J. Brennan, Jr., Associate Justice of the United States Supreme Court.  In 2011, Prof. Dane received the Inaugural Dean’s Award for Scholarly Excellence at Rutgers Law School's Camden location.  He is also the chair of the faculty council at  Rutgers University—Camden.

What was Justice Scalia’s judicial philosophy?

Justice Scalia was an “originalist.”  At least that’s been the shorthand label that commentators have used since his death.  It’s also the catchword that he often used to describe himself.  But the Justice also called himself a “faint-hearted originalist.” He was, he said, “not a nut.”  He denounced the idea of a “living Constitution,” once joking that the Constitution was “dead, dead, dead!”  He believed that judges should try to interpret Constitutional provisions as they were originally understood.  But he did not try to overturn entire bodies of settled constitutional doctrine based on long-forgotten historical evidence.  And he admitted that in lots of contexts original meaning didn’t help settle current controversies.

Really, Justice Scalia’s “originalism” was only one piece of a larger mindset.  He was also a textualist.  Words – specific words – had meaning.  And Justice Scalia believed in democracy.  He did not think that judges should override the will of the people without a clear constitutional warrant.

Most important, Justice Scalia detested what he considered lazy reasoning, defective logic, and leaps of judicial fancy.  His most famous, colorfully scornful, adjectives – “jiggery-pokery,” “argle-bargle,” “pure applesauce”– were reserved for conclusions that he thought were just sloppy or contrived or based on flowery language lacking a sound analytic foundation.  His love of sharp Socratic debate was, I think, the real heart of his judicial philosophy and his greatest contribution was to force even his opponents to sharpen their arguments and patch up their reasoning.

Which of Justice Scalia’s opinions do you find the most memorable?

Justice Scalia wrote so many majority and dissenting opinions that it would be foolish to try to name his most significant.  But a few are particularly memorable to me personally.  Some concerned one of my scholarly focuses: religion and the law.  In Employment Division v. Smith, Scalia’s majority opinion declared that construing the free exercise of religion clause to uphold claim to religious exemptions from otherwise neutral laws would be, in one of Scalia’s powerful turns of phrase, a “constitutional anomaly.”  I support religion-based exemptions, but I have spent many pages trying to justify them in the light of Scalia’s powerful and accurate critique.  His criticisms of the Court’s Establishment Clause doctrine were even more pungent, and more insightful than those of us who support strict separation between church and state are often willing to admit.

District of Columbia v. Heller, in which the Court upheld an individual right to “keep and bear arms,” was one of Scalia’s most sustained efforts at originaist analysis based on historical materials.  I really admired, however, opinions in which Justice Scalia seemed to go against his own ideological grain.  In Crawford v. Washington, for example, he led the Court in assuring criminal defendants the right to confront witnesses and cross-examine witnesses against them.  And Justice Scalia, in his public comments, kept returning to Texas v. Johnson, a case in which he wrote no opinion himself but in which he provided the fifth vote supporting Justice Brennan’s bitterly denounced opinion holding that the First Amendment protected the right of a political protester to burn an American flag.  Just a few months ago, in Philadelphia, Scalia said that “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag.” “But I am not king.”

Do you have any thoughts on the fight over Justice Scalia’s successor?

It’s a deeply troubling mess.  I wrote in a column in The Forward after Justice Scalia’s death that our process for selecting Justices has “morphed badly.”  It has become bitterly partisan.  It seeks Justices who are predictable and rigid, not independent and supple.  We desperately need to rethink, and even radically revise, the whole system before we lose sight of the one thing that my boss, Justice Brennan, and Justice Scalia, both cherished – the rule of law.