303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse? – Emilie Kao

Posted by on Jan 25, 2023 in Per Curiam

303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse? – Emilie Kao
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303 Creative v. Elenis: Can Stand-Alone Dignitary Harm Create a Right to Endorsement and Duty to Endorse?

Emilie Kao*

All people have inherent dignity and should be treated with respect. However, whether and how courts should address legal claims surrounding dignity are notoriously complicated.[1] Does the government have an interest in protecting citizens from “dignitary harm” – subjective feelings of emotional distress or stigma? If so, does the government’s interest require it to compel or silence the expression of certain views? If so, does the dignity of the person compelled to speak or remain silent matter? Dignitary harm has played important roles in conflicts between religious freedom and anti-discrimination laws in Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia.[2] And they are at issue again in 303 Creative v. Elenis, a free-speech case that was recently argued at the U.S. Supreme Court.

In 303 Creative, Colorado’s public accommodation law—the Colorado Anti-Discrimination Act (CADA)— requires graphic artist, Lorie Smith, to create websites celebrating same-sex marriage that violate her religious belief that marriage is between one man and one woman. Colorado stipulated that Ms. Smith serves all people, regardless of sexual orientation and that her websites are unique, custom, and expressive; in other words, that she is engaging in pure speech.[3] Like many artists, Ms. Smith chooses each word, visual design, and artistic element to tell a unique story that is consistent with her beliefs, whether about animal rescue, homelessness, or marriage. She wants to design websites to “promote God’s design for marriage.”[4] Therefore, she cannot create websites that celebrate marriages contrary to God’s design for any of her clients, regardless of sexual orientation. Her decisions are always based on the message, not the person.

Colorado claims that it has a compelling interest in ensuring that members of protected classes are shielded from “dignitary harm.” That dignitary harm, though, consists merely in a creative professional declining to endorse their desired message. The Tenth Circuit agreed with Colorado. But in his dissent, Chief Judge Tymkovich warned that, “[l]ike Nineteen Eighty-Four’s Winston Smith, CADA wants Lorie Smith to not only accept government approved speech but also to endorse it.”[5] The Supreme Court should refuse Colorado’s attempt to create a right to endorsement and a corresponding duty to endorse that would compel Ms. Smith to speak messages that violate her conscience. A government interest in protecting citizens from the emotional and moral distress of disagreement is intrinsically distinct from the material and dignitary harms created by status-based denials. Therefore, courts should treat the claims arising from these distinct interests differently.

I.               The Three-Fold Expansion of Anti-discrimination Laws

Claims for a right to endorsement (and duty to endorse) can be traced back to the three-fold expansion of anti-discrimination laws. These laws, including the 1875 Civil Rights Act and the 1964 Civil Rights Act (CRA), were originally enacted to protect the government’s interest in shielding citizens from unequal treatment, based on the immutable characteristic of race, that effectively barred them from accessing essential goods and services.[6]

More recently, states have expanded anti-discrimination laws in three ways: the definition of public accommodations, the number of protected classes, and the legal definition of harm. This three-fold expansion has led America far away from the original purpose of these laws which was to stamp out status-based discrimination and to guarantee equal access to essential goods and services. Anti-discrimination laws as originally conceived did not empower the government to compel or censor speech. 303 Creative offers the Supreme Court an opportunity to bring much-needed clarity to an area of law that is increasingly muddled.

The first expansion by some legislatures was to broaden the definition of public accommodations from inns and traditional common carriers (e.g., trains and buses) to include anyone who offers goods or services (whether for charge or free) to the public, including non-profits and individual sellers on websites like Etsy.[7] Just compare the 1875 Civil Rights Act, which only covered “inns, public conveyances on land or water, theaters, and other places of public amusement” to Minnesota’s law, covering establishments of “any kind, whether licensed or not, whose . . . services . . . are extended, offered, sold, or otherwise made available to the public.”[8]

Courts in some jurisdictions have followed suit and evaluated public-accommodation laws that applied to newspapers, internet search engines, websites, and a law association’s magazine.[9] Nevada recently expanded their law to cover “[a]ny online establishment.”[10] Colorado fits this category too. Not only did Colorado concede that its enforcement officials would interpret its public-accommodation law to cover the web-design firm 303 Creative, but courts in Colorado had already interpreted that law in similarly broad ways.[11]

The second expansion of anti-discrimination laws by local governments dramatically increased the number of protected classes.  For example, Madison, Wisconsin now recognizes 28 protected classes in public accommodations and employment, including political beliefs, physical appearance, and arrest and conviction history.[12] This expansion inevitably swept in objections to what people said rather than who they are. Disagreements between customers and businessowners over endorsement of a particular message that previously might have been resolved through polite referrals instead became fodder for litigation. For example, after Jack Phillips and Masterpiece Cakeshop won their case at the Supreme Court, he was sued by a Colorado lawyer for declining to create a custom cake celebrating a “gender transition.” Other examples include a pro-Israel group suing a progressive bar association for refusing to publish their advertisement.[13] And when a prospective customer asked a lesbian cake artist in Detroit to write “Homosexual Acts are gravely evil” on a cake, the artist feared that she would be sued for violating the local public-accommodation law.[14]

Treating political beliefs as a protected class could broaden legal conflicts even further. Laws already do this in at least 19 jurisdictions.[15] For example, would the government have an interest in recognizing a pro-life customer’s claim of dignitary harm if a pro-abortion tattoo artist declines to celebrate the Supreme Court’s decision in Dobbs using ink? Or would the government have an interest in shielding a Republican voter from feelings of stigma if a Democrat videographer refuses to film a rally promoting his party’s platform? Or would the government have an interest in protecting the dignity of a National Rifle Association (NRA) member if a graphic artist who favors gun control declines to create a custom website celebrating gun ownership? Even if they could obtain services from other artists, according to Colorado’s legal theory, each of these customers would suffer dignitary harms from the referrals.[16]

Now, Colorado seeks to create a third expansion of anti-discrimination law by interpreting CADA to cover stand-alone dignitary harms, even where no material harm (e.g., financial loss or inability to access services) exists. If the Court were to recognize the stand-alone dignitary harm in 303 Creative, it would also need to recognize the dignitary harms to pro-life, Republican, and pro-gun customers. The third expansion of anti-discrimination law would radically depart from the original purpose of anti-discrimination law (guaranteeing equal access to goods and services) and dramatically expand government power to the detriment of individual citizens and the public interest.[17]

II.             Freedom to Disagree with the Government

Governments do not have a legitimate interest in protecting citizens from stand-alone claims of dignitary harm since, simply put, the emotional and moral distress of ethical confrontations are a feature of free society.[18] Unlike during the Jim Crow area when black Americans faced both material and dignitary harms from racial prejudice, new claims arising from disagreements over same-sex marriage are staked on “dignitary harm” alone.

In 303 Creative, Colorado invokes cases of white businessowners who violated the 1964 Civil Rights Act because they opposed racial integration.[19] In two cases cited by Colorado, Anne P. Newman v. Piggie Park and Heart of Atlanta Motel v. U.S., white businessowners denied black customers equal access to food and accommodations to keep customers racially segregated.[20] But comparisons between them and Ms. Smith are wholly inapposite. She believes in the dignity of all people and, as noted, Colorado stipulated that she serves gay customers.[21] Her decisions on what websites to create are based on the message, not the person.

White supremacy permeated American businesses, social institutions, and the law during the Jim Crow era. Efforts to keep black and white Americans from studying in the same classrooms, drinking from the same water fountains, and intermarrying and producing children of mixed racial heritage all flowed from the same poisoned spring. When the Supreme Court unanimously struck down anti-miscegenation laws in Loving v. Virginia, it called race-based distinctions “odious to a free people.”[22]

The Court acknowledged both material and dignitary harms when addressing race-based denials of service. The denials stigmatized black Americans because of who they were, reinforcing an entire social, political, and legal edifice that stymied their upward mobility. In Brown v. Board of Education, the Court recognized that government-mandated racial segregation in public schools generated in black children “a feeling of inferiority as to their status” that denied them equal educational opportunities.[23] Upon ending laws that barred black Americans from serving on juries, the Supreme Court in Strauder v. West Virginia stated that the exclusion “practically” served as a “brand” which implied their “inferiority in civil society” and were “steps towards reducing them to the condition of a subject race.”[24] The CRA and other anti-discrimination laws were intended to bring down an entire edifice of both de jure and de facto racial discrimination which perpetuated the “badges and incidents of slavery” that the Thirteenth Amendment sought to end.[25]

No person should face discrimination based on status as black Americans did. As Northwestern law professor Andrew Koppelman points out, racial discrimination created “choke points” that inflicted both material and dignitary harms.[26] During the Jim Crow era, businessowners sent the message, “We don’t serve your kind,” despicable conduct based solely on status. Today, however, in a country of 330 million people, the current conflicts over sexual orientation in public-accommodation laws are not about businesses denying essential goods and services to individuals based on status. “In all of them, the people who objected to the law at issue were asked directly to facilitate same-sex relationships by providing wedding, adoption or artificial insemination services, counseling, or rental of bedrooms. There have been no claims of a right to simply refuse to deal with gay people.”[27]

Ms. Smith serves everyone. She cannot endorse every message requested of her without violating her conscience. Ms. Smith tells her clients, “I will gladly create custom websites or other art for you. Like other artists, the message must be consistent with my beliefs, my areas of passion, and my own expertise.”[28] When the customer in Detroit requested a cake from the lesbian cake designer that condemned homosexual acts, she also declined to endorse the requested message. An attorney for the LGBTQ Project, ACLU of Michigan, stated that she wasn’t “turning the customer away,” but was within her rights to decline to create an “offensive” message.[29] Choosing whether or not to endorse a message falls into the category of what Jeremy Waldron calls “ethical confrontations,” the open clash between earnestly held opinions about the nature of the good life. Waldron, who supports some regulation of speech, nonetheless argues that the “moral distress” that arises from ethical confrontations “is a positive and healthy sign,” not an example of John Stuart Mill’s “harm principle.”[30]

But Colorado seeks to equate potential moral distress from a businessowner’s decision not to create messages endorsing same-sex marriage as legally cognizable harm.[31] Colorado seeks to put stand-alone dignitary harm claims on par with the comprehensive material and dignitary harms that both the government and society inflicted on black Americans by denying them access to essential goods and services. However, being barred from classrooms, juries, restaurants, or motelsbecause of your skin color is categorically different than being told that someone will not endorse your message.

It is a misuse of state power to shield one citizen from the moral or emotional distress of being told that someone holds a different idea of marriage and cannot endorse that view of marriage. But in its ruling for Colorado, the Tenth Circuit Court of Appeals admitted that “[e]liminating . . . ideas is CADA’s very purpose.”[32] Colorado lacks even a legitimate interest, much less a compelling interest, in misusing anti-discrimination law to eliminate disfavored ideas from the public square. It cannot satisfy even the first prong of the strict-scrutiny standard necessary to overcome the Constitution’s protection of free speech. In fact, Colorado has applied its public-accommodations law in a manner that permits individuals to make decisions based on messages. In Masterpiece Cakeshop, the Supreme Court noted that Colorado allowed three bakeries to deny a request by a religious customer to create cakes with messages that opposed same-sex marriage. [33] Some businesses can refrain from creating and selling speech (if they would not create it or sell it to anyone) without running afoul of CADA. But Colorado refuses to protect Ms. Smith’s choice of messages because she wants to speak about marriage in a way that differs from the state’s view.

Compelling Ms. Smith to endorse Colorado’s view of marriage would stifle pluralism and the public’s ability to engage in open discussion about matters of importance. It would also undermine the Supreme Court’s commitment in Obergefell v. Hodges not to “disparage” those who hold philosophical and religious objections to same-sex marriage that are rooted in “decent and honorable” premises.[34]

III.           Free Speech and the Contraction of Dignitary Harm

When the Court has balanced stand-alone dignitary harms against the First Amendment, it has consistently ruled in favor of freedom. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court forbid Massachusetts from forcing parade organizers to include a group with a banner expressing a message about their sexual orientation in a St. Patrick’s Day parade because it would change the parade’s message.[35] The Court stated that “a speaker has the autonomy to choose the content of his own message.”[36] Similarly, in Boy Scouts of America v. Dale, the Court determined that the government could not override the Boy Scouts’ freedom of expressive association because of a Scout leader’s claim of discrimination based on sexual orientation.[37] The organization had the right to express its own values regarding sexual conduct and marriage. Government compulsion would have changed the organization’s intended message.[38]

Colorado’s argument runs contrary to both Hurley and Dale. It also contradicts the Court’s reasoning in dignitary tort cases. In Hustler Magazine v. Falwell, the Court unanimously upheld the magazine’s free-speech right to satirize the Christian preacher and his mother, overruling a finding of intentional infliction of emotional distress (IIED). Justice Rehnquist wrote:

“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas . . . . The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”[39]

In Phelps v. Snyder, the Supreme Court also upheld the reversal of a IIED damage award to a fallen soldier’s family. The Court refused to silence the Westboro Baptist Church—an anti-gay, anti-Catholic group that picketed a Marine funeral—even though Justice Alito described their words as a “vicious verbal assault.”[40]

In “The Puzzle of the Dignitary Torts,” Professors Kenneth S. Abraham and G. Edward White chronicle the decline of defamation and IIED claims after the First Amendment ruling in New York Times v. Sullivan.[41] They conclude that speech that merely causes emotional distress should not be actionable as IIED. “Sometimes people are sarcastic, ridicule others, or build up their own self-esteem at others’ expense. This kind of conduct may not be admired, and it may be criticized, but it is not regarded as beyond the bounds of what is socially acceptable. It does not call into the worth or the dignity of the individual in question and is not actionable.”[42]  Abraham and White do not lament the contraction of dignitary torts, because there was never any underlying unity between the interests that they protected and those protected by other torts. For example, battery and intrusion on solitude protected interests in liberty and autonomy. However, torts of public disclosure and IIED protected interests in avoiding embarrassment or humiliation.[43] Courts had no reason to treat interests in avoiding dignitary injury the same as interests in avoiding physical harm. Therefore, the principles that developed in each tort to protect the distinct interests also remained separate.[44]

Similarly, courts can continue to distinguish between government interests in protecting citizens from status-based discrimination (i.e., “we don’t serve your kind”) from government interests in protecting citizens from the moral or emotional distress of disagreement (i.e., “we can’t create that message for anyone”).  Courts should prevent state actors from censoring or compelling the speech of one citizen to protect another from emotional distress. The vitality of our democracy depends on the free flow of ideas. Therefore, forcing any citizen to speak against his or her own conscience undermines self-government.

Claimants who seek remedies for dignitary torts, such as IIED, often ask courts to censor other citizens. In Texas v. Johnson, the Court stated that the “bedrock principle” underlying the First Amendment is “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[45]

But Colorado seeks an even more harmful remedy by asking the Court to compel Ms. Smith to endorse its view of marriage. She believes that doing so would violate her belief in God’s design for marriage. As the Court stated in Janus v. ACFSME:

When speech is compelled . . . additional damage is done . . . [since] individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.[46]

The Court in 303 Creative should reject Colorado’s attempt to create a right to endorsement and corresponding duty to endorse. Same-sex marriage is embraced by the majority of Americans.[47] And, at the same time, there is still an honest and ongoing debate about marriage. Many Americans disagree with Ms. Smith, and they have the freedom to do so. Likewise, Ms. Smith should also have the freedom to disagree with Colorado, and the government should not be able to force her to express its views to enter the marketplace. The State is duty bound to respect all beliefs and viewpoints of its citizens, even the ones it might not like.

Colorado’s application of CADA prohibits Ms. Smith from creating custom websites consistent with her deepest beliefs. Under the statute, Colorado has the power to issue a cease-and-desist order and fine Ms. Smith if she begins to create websites celebrating marriages that align with her beliefs.[48] Colorado has outwardly demeaned Ms. Smith’s beliefs and stigmatized her by comparing her to racist businessowners. Other citizens have also harassed her with death threats and almost daily hacking attempts on her website. In a national market of over 250,000 graphic designers and a culture that lauds same-sex marriage, no same-sex couple faces obstacles to obtaining wedding websites.[49] As Professor Stephanie Barclay has written, these conflicts involve claims of “reciprocal harms” to dignity.[50] But thus far, Colorado has only recognized the emotional distress to citizens on one side of the ledger .Colorado is forcing Ms. Smith, a free and independent individual, to endorse ideas that she finds objectionable. In the Janus Court’s words, this “is always demeaning.” Ms. Smith should not lose her constitutional right to refrain from speaking because the State fails to recognize the dignity of citizens who hold different views on marriage.

The three-fold expansion of anti-discrimination laws has created confusion about the difference between status-based discrimination and decisions not to endorse particular messages. Colorado seeks to compel Ms. Smith to endorse its view of marriage based on an asserted interest in protecting citizens from dignitary harm. However, the Supreme Court has never regulated speech to protect citizens from emotional distress alone, whether under tort or anti-discrimination law. And for good reason. Permitting stand-alone dignitary harm to create a right to endorsement and corresponding duty to endorse would misapply anti-discrimination law. It would ignore how the government demeans a person by forcing her to speak messages that undermine her own convictions. Treating one citizen’s human dignity as contingent on another citizen’s endorsement of their beliefs would wreak legal havoc. It would jeopardize the freedom of the pro-abortion tattoo artist, the Democratic videographer, the gun-control favoring graphic artist, and the lesbian cake artist. The concept of “dignity as endorsement” will eliminate the freedom to disagree with the State, undermining a crucial aspect of human flourishing – the freedom to speak (or not speak) according to one’s own beliefs. Limiting speech and the flow of ideas undermines our common quest for truth and the vitality of society as a whole. Therefore, in the case of 303 Creative, the Supreme Court’s decision should respect human dignity by protecting free speech for all Americans, not just those who agree with the State.

 

 

 

 

 

* Emilie Kao is Senior Counsel and Vice-President for Advocacy Strategy at Alliance Defending Freedom (ADF) which represents Lorie Smith. The views expressed here do not necessarily reflect the views of ADF or its clients. The author thanks her colleagues Jonathan Scruggs, Erin Hawley, Kellie Fiedorek, Jake Warner, and Andrew Graham for their contributions. Julie Peterson, Seth Lucas, and Sharon Supp provided valuable editorial assistance.

[1] See generally Kenneth S. Abraham & G. Edward White, The Puzzle of Dignitary Torts, 104 Cornell L. Rev. 317, 320 (2019) (describing dignity and dignitary torts as “unanalyzed and undebated” despite “their obvious and growing importance.”)

[2] See Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018); Fulton v. City of Phila., 141 S. Ct. 1868 (2021). See Brief for Sherif Girgis as Amicus Curiae Supporting Petitioners, Masterpiece Cakeshop, 138 S. Ct. 1719 (2018) (No. 16-111), for a detailed discussion of Colorado’s application of dignitary harm.

[3] Petition for Writ of Certiorari at 5, 303 Creative LLC v. Elenis, No. 21-476 (U.S. Sept. 24, 2021). See also Elenis, 6 F.4th 1160, 1172 (10th Cir. 2021) (“True enough, the parties stipulated to the district court that Appellants are ‘willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender.’”).

[4] Reply Brief for Petitioners at 4, 303 Creative, No. 21-476 (U.S. Dec. 22, 2021).

[5] 303 Creative, 6 F.4th at 1212 (Tymkovich, J., dissenting).

[6] Many state statutes were also initially enacted to stamp out invidious race-based discrimination. For a more in-depth look at the development of anti-discrimination laws, see Ryan T. Anderson, Shields Not Swords, 35 Nat’l Affairs (2018).

[7] See Boy Scouts of Am. v. Dale, 530 U.S. 640, 657 n.3 (2000) (noting this expansion).

[8] Compare Civil Rights Cases, 109 U.S. 3, 9 (1883) (listing text of 1875 law) with Minn. Stat. § 363A.03 (emphasis added).

[9] See, e.g., World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 257–58 (Utah 1994); Pines v. Tomson, 160 Cal. App. 3d 370, 383, 206 Cal. Rptr. 866, 874 (Cal. Ct. App. 1984); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y. 2017); Jian Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014); Athenaeum v. Nat’l Lawyers Guild, Inc., No. 653668/16, 2018 WL 1172597 (N.Y. Sup. Ct. Mar. 06, 2018).

[10] Nev. Rev. Stat. § 651.050; see also Harrington v. Airbnb, Inc., 348 F. Supp. 3d 1085, 1093 (D. Or. 2018) (applying public-accommodation law to online platform).

[11] See Creek Red Nation, LLC v. Jeffco Midget Football Ass’n, Inc., 175 F. Supp. 3d 1290 (D. Colo. 2016) (applying Colorado law to non-profit association for youth league football); see also Pet. for Writ of Cert., supra note 3, at 189a (agreeing that “303 Creative is a ‘place of public accommodation’ subject to CADA.”).

[12] Madison, Wis., Code of Ordinances § 39.03 (2023). Washington D.C.’s law protects 23 protected classes, including “political affiliation.” Protected Traits in DC, Office of Human Rights, https://ohr.dc.gov/protectedtraits (last visited Jan. 10, 2023).

[13] Press Release, The Lawfare Project, Groundbreaking Lawsuit Alleges National Lawyers Guild Discriminated Against Israeli Organization, Violating New York Law (Jan. 12, 2018), https://www.thelawfareproject.org/releases/2018/4/2/ groundbreaking- lawsuit-alleges-national-lawyers-guild-discriminated-against-israeli-organization-violating-new-york-law.

[14] Susan Selasky, Lesbian Baker in Detroit Got Homophobic Cake Order: Why She Made it Anyway, Detroit Free Press (Aug. 13. 2020), https://www.freep.com/story/news/local/michigan/detroit/2020/08/13/detroit-baker-april-anderson-homophobic-cake-david-gordon/3343464001/.

[15] See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 N.Y.U. J. L. & Liberty 490 (2022).

[16] See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, Reason (Oct. 18, 2021), https://reason.com/volokh/2021/10/18/bans-on-political-discrimination-in-places-of-public-accommodation-and-housing/ (“And it’s helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.”).

[17] The Tenth Circuit Court of Appeals reasoned that CADA could be applied to pure speech. 303 Creative, 6 F.4th at 1178. It found that Colorado satisfied strict scrutiny because an individual artist, “due to the unique nature of [her] services, . . . is more similar to a monopoly.” Id. at 1180. The “monopoly-of-one” theory, as Judge Timothy Tymkovich wrote in dissent, would create a world in which any expressive professional would immediately become subject to expression-on-demand — particularly if that expressive professional is innovative and thus “unique.” Id. at 1204. See Brief for Americans for Prosperity as Amicus Curiae Supporting Petitioners, 303 Creative, No. 21-476 (U.S. Oct. 22, 2021), for a discussion of effects on free market.

[18] See generally Brief for Sherif Girgis as Amicus Curiae, Masterpiece Cakeshop, 138 S. Ct. 1719 (No. 16-111).

    [19] Brief on the Merits for Respondents, at 14, 38, 303 Creative, No. 21-476 (U.S. August 12, 2022) (discussing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260 (1964)).

[20] Brief on the Merits for Respondents at 14, 303 Creative, No. 21-476 (U.S. Aug. 12, 2021) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 260 (1964) and citing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n.5 (1968)) (“[I]n a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty.”); id. at 38 (quoting Heart of Atlanta, 379 U.S. at 292 (Goldberg, J., concurring)) (“The state has an equally compelling interest in protecting the dignity of its citizens. ‘Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel’ when denied service.”).

[21] See Petition for Writ of Certiorari, supra note 3, at 5; see also 303 Creative, 6 F.4th at 1172 (10th Cir. 2021).

[22] 388 U.S. 1, 11 (1967).

[23] 347 U.S. 483, 494 (1954).

[24] 100 U.S. 303, 307–08 (1879). In Strauder, the Supreme Court cited discussion of the Thirteenth and Fourteenth Amendments in the Slaughterhouse Cases, 83 U.S. 36 (1872). The Court stated that the amendments had “secur[ed] to a race recently emancipated . . . all the civil rights” including “the right to exemption from unfriendly legislation against them distinctively as colored,— exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” Id. at 306–08.

[25] Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440–443 (1968). In Jones, the Supreme Court found that Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. . . . Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom—freedom to “go and come at pleasure” and to “buy and sell when they please”—would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep. Id. (internal citations omitted).

[26] Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 639, 644 (2015).

[27] See id. at 643.

[28] See Pet. for Writ of Cert., supra note 3.

[29] See Selasky, supra, note 15.

[30] Andrew Koppelman, A Free Speech Response to the Gay Rights/Religious Liberty Conflict, 110 Nw. U. L. Rev. 1125, 1152 (2016) (citing Jeremy Waldron, Mill and the Value of Moral Distress, in Liberal Rights: Collected Papers 1981–1991 at 115 (1993)).

[31] Colorado recognizes “dignitary harm” in the context of anti-discrimination law when the customer’s protected status is based on sexual orientation as in 303 Creative and Masterpiece Cakeshop. However, Colorado declined to recognize the dignitary harm claims of the customers of the other bakers in Masterpiece Cakeshop who claimed protected status based on religion.

[32] 303 Creative, 6 F.4th at 1178.

    [33]  Masterpiece Cakeshop, 138 S. Ct. 1719, 1728 (2018).

[34] 576 U.S. 644, 672 (2015).

[35] 515 U.S. 557, 559 (1995).

[36] Id. at 573.

[37] 530 U.S. 640, 643–44 (2000).

[38] Id. at 656.

[39] 485 U.S. 46, 50–51(1988).

[40] 562 U.S. 443, 463 (2011) (Alito, J., dissenting).

[41] Abraham & White, supra note 1, at 363–71 (charting attempts to systematically analyze and unify dignitary torts by legal scholars, including by William Lloyd Prosser and Harry Kalven, that begin in the 1940s and declined after New York Times v. Sullivan in which the Supreme Court ruled that a public figure’s defamation claims could not justify silencing the newspaper’s commentary on public affairs absent actual malice that met the standard of clear and convincing evidence).

[42] Id. at 376–77.

[43] Id. at 377.

[44] Id. at 378–79.

[45] 509 U.S. 350 (1989) (italics added).

[46] 138 S. Ct. 2448, 2464 (2018) (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943)).

[47] Only seven years after Obergefell v. Hodges, 70% of Americans and 64% of self-described Evangelicals under 40 support it. Brief for Scholars of Family and Sexuality as Amici Curiae Supporting Petitioners at 16, 303 Creative, No. 21-476 (U.S. June 1, 2022).

    [48] “Commission may issue a cease and desist order against the offending public accommodation.” 303 Creative, 6 F.4th at 1169.

[49] After Masterpiece Cakeshop, popular online business directory Yelp! began allowing businesses to indicate that they are LGBT-owned, LGBT-friendly. The company states that over 581,000 businesses have used chosen to advertise their services specifically to LGBT customers, including by dropping a rainbow-colored pin on a map. Miriam Warren, Yelp Makes It Easy to Support LGBTQ-Owned Businesses, and Find “Open to All” Places to Celebrate Pride, Yelp Blog (May 24, 2021), https://blog.yelp.com/news/yelp-makes-it-easy-to-support-lgbtq-owned-businesses/.

[50] Stephanie H. Barclay, An Economic Approach to Religious Exemptions, 72 Fla. L. Rev. 1211, 1228–31 (2020).

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Scalia the Legal Sociologist – Lawrence Lessig

Posted by on Jan 19, 2023 in Per Curiam

Scalia the Legal Sociologist – Lawrence Lessig
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Scalia the Legal Sociologist

Lawrence Lessig*

What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program. A video of the lecture is available online at https://youtu.be/ajftWFpSLzw and the complete written remarks can be accessed at https://www.harvard-jlpp.com/the-2022-herbert-w-vaughan-academic-program.

* * *

I want to talk about one of my favorite “original Scalia” opinions—one not mentioned by Professor Vermeule, either today or in his extraordinary book, Common Good Constitutionalism.[1] This is an opinion written—it is reported, as the opinion was per curiam—by Judge Scalia, when he served on the D.C. Circuit Court of Appeals. The case involved the Gramm-Rudman-Hollings Act,[2] which was designed to reduce the federal deficit by giving to the comptroller the power to cut the budget if Congress failed to meet certain spending targets. The D.C. Circuit struck the act; Bowsher v. Synar,[3] affirmed the D.C. Circuit.

Here’s the passage of the “original Scalia” that I want to focus upon, discussing the removal cases of the Supreme Court:

These cases reflect considerable shifts over the course of time, not only in the Supreme Court’s resolutions of particular issues relating to the removal power, but more importantly in the constitutional premises underlying those resolutions. . . . Justice Sutherland’s decision in Humphrey’s Executor, handed down the same day as A.L.A. Schechter Poultry . . . is stamped with some of the political science preconceptions characteristic of its era and not of the present day . . . . It is not as obvious today as it seemed in the 1930s that there can be such things as genuinely “independent” regulatory agencies . . . or, indeed, that the decisions of such agencies so clearly involve scientific judgment rather than political choice that it is even theoretically desirable to insulate them from the democratic process.[4]

What’s striking about this opinion is that it is Scalia—speaking as legal sociologist. It is Scalia reporting something about us, or at least about them in the 1980s. It is Scalia telling us something about how they spoke, about what their “preconceptions” were. Those “preconceptions” would be familiar to anyone educated at the Harvard Law School in the 1950s. They were realist preconceptions; they would mature into critical legal studies preconceptions. And according to those preconceptions, when lawyers or judges tell us they are telling us about science, they are actually telling us about politics. Or at least, when they are telling us what science requires, it is not “so clear” that those tellings are the project of “scientific judgment” rather than “political choice.”

This realism was central to the original Scalia—too. Think about his opinion in Printz v. United States,[5] striking the Brady Act, rejecting the idea that commandeering state administrators was different from commandeering state legislatures:

The Government’s distinction between “making” law and merely “enforcing” it, between “policymaking” and mere “implementation,” is an interesting one. . . . Executive action that has utterly no policymaking component is rare . . . . Is it really true that there is no policymaking involved in deciding, for example, what “reasonable efforts” shall be expended to conduct a background check?[6]

Or, in other words, is it really not true that “It’s all politics”?

But there’s a subtlety in Scalia’s language that we should not overlook. Scalia’s not telling us how things are. He is telling us how we, now, view things. He’s not rejecting the idea that at an earlier time, such a line could be drawn. Whether it could be drawn or not was a function of them, and how they spoke, or understood the law. Just because we can’t draw that line doesn’t mean they couldn’t, just as the fact that we can’t speak Latin doesn’t mean Justice Bradley (and most of the best 19th century justices) couldn’t. What we can do is a function of us, and our language and practice and culture—that’s why I called it sociology. And what we can’t do doesn’t entail anything about what another culture at a different time could or could not do.

Seen like this, Scalia’s language should remind us of another extraordinary 20th century justice, also educated at this law school, Justice Louis Brandeis. In one of that century’s most important cases—and again, a case not mentioned by Professor Vermeule either today or in his book—the Court overturned what is said to be the doctrine of Swift v. Tyson.[7] In Erie v. Tompkins,[8] Brandeis says this:

The doctrine rests upon the assumption that there is “a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute” . . . . But law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State . . . is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else.[9]

Here again is a kind of realism. Whatever they might have been able to do in the 19th century, it is not something we can do today. “Law in the sense in which courts speak of it today” does not allow it. And instead, we must craft our practice—and indeed the constitution, for remember, Erie declared the practice of federal general common law unconstitutional—according to our present “speaking” abilities.

I say all this because I want to suggest that at the heart of Professor Vermeule’s extraordinary work—both his analysis of Scalia today and his bookis a presumption about our abilities today that I don’t think we can take for granted. Professor Vermeule’s work asks us to reimagine—so we might practice again—the classical model of law. In this classical model, law is both lex—what legislatures, presumptively, write—and ius—the principles and traditions and morals behind that lex. Scalia, Professor Vermeule says, aims to “translate[]” this classical model to the American constitutional order.[10] And in doing so, he recognizes an unavoidable need for the law applier—whether judge or administrator—to make “dispensations,” “case-specific adjustment of vague, ambiguous or overly general language to particular circumstances, in order to promote the public-regarding ends the legislator had in view.”[11] Professor Vermeule urges—not so much here, today, but in his book—a return to this practice. And he now bolsters the argument for return by invoking the Scalia that is easiest for most of us to accept, or respect—the original Scalia.

But the question I want to press—drawing upon the Scalia from Synar and Printz, and inspired by Brandeis in Erie—is this: Are we, as a legal culture, today, capable of this practice, this classical model practice, anymore? Are we skilled in it? Could we imagine teaching it to our students? And more pressingly, are we able to imagine administrators—whether courts or agencies—engaging in a practice of “adjusting vague, ambiguous or overly general language to particular circumstances, in order to promote the public regarding purposes [that that administrator believes the] legislature had in view”—without viewing such “adjusting” as just another example of politics?

Because such a practice presumes something about the legal culture that engages in it. It presumes, in particular, a trust or confidence or good faith. It imagines a culture that doesn’t meet each act of a Supreme Court with a skeptical, political eye. It presumes that we don’t look for the ulterior motive, a political motive, behind every decision—and speak about that openly, as we do, for example, about Dobbs v. Jackson Women’s Health Organization,[12] or Bush v. Gore,[13] or whatever—because presumably, the institutions have not given us any reason, or any good reason, to be so suspicious.

Yet I would submit, our legal culture today is not the culture that the classical model presumes. Whether justified or not, our culture today, our legal culture, is deeply suspicious. Profoundly skeptical. And in our culture today, whenever any court (and from the perspective of the D.C. Circuit, any agency) acts, we do not presume it acts in the public interest. We instead suspect it acts for a political interest. That’s not necessarily partisan, but it reads like that. And what that means is that any act of “dispensation” becomes presumptively illegitimate, at least when it comes down on one side of an issue seen to be political.[14]

My sense is that Scalia sensed this. And that what explains his evolution—his abandonment of the classical model—is not so much him, as his perception about us—about the law in our legal culture today. And I would agree with this perception. What explains his apostasy is the belief that, to remix Synar, “such ‘dispensations’ do not so clearly involve ‘public regarding purposes’ rather than political choice”; or to remix Printz, “Is it really true that there is no policymaking involved in deciding, for example, what this proper ‘dispensation’ is?” Or finally, to remix Brandeis, Scalia’s apostasy is the product of believing that “law in the sense in which courts speak of it today does not exist without some definite politics behind it,” and that the job of the courts, therefore, is to minimize as much as possible any action that might be seen to be the product of such politics.

From this perspective, Scalia’s words but a month before he passed make perfect sense: “despite my veneration for Thomas Aquinas, I plan to contradict what Aquinas says about judging. . . . It is necessary to judge according to the written law—period.”[15] Why? Because it is right, always and everywhere? Or because it is right, for us, given our deeply realist legal culture, now?

I suggest the Evolved Scalia has simply translated Thomas Aquinas, or the classical tradition, from a very different legal culture into our own, very skeptical, legal culture. Or more precisely, that Scalia has translated Aquinas in light of his recognition of the “public regarding purpose” that Scalia believed the Constitution imposed upon the Court—to minimize judicial acts that might be seen to be political acts. The Evolved Scalia is simply the Original Scalia, translated. Respecting fidelity to Aquinas’ meaning, subject to the constraint of the judicial role.

 

* Roy L. Furman Professor of Law and Leadership, Harvard Law School.

[1] Adrian Vermeule, Common Good Constitutionalism (2022).

[2] Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037 (codified as amended in scattered sections of 2 U.S.C.).

[3] 478 U.S. 714 (1986).

[4] Synar v. United States, 626 F. Supp. 1374, 1398 (1986) (per curiam).

[5] 521 U.S. 898 (1987).

[6] Id. at 927.

[7] 41 U.S. 1 (1842).

[8] 304 U.S. 64 (1938).

[9] Id. at 79.

[10] Adrian Vermeule, The Original Scalia, 2023 Harv. J. L. & Pub. Pol’y Per Curiam 2, *2 (2023).

[11] Id. at *4.

[12] 142 S. Ct. 2228 (2022).

[13] 531 U.S. 98 (2000).

[14] Professor Vermeule doubts that “we”—as in the “widespread public”—are realist in the sense I’ve described. Vermeule, supra note 10, at *14–15 n.91. I have no doubt he is correct about the folk sense of justice in ordinary people. Yet the question I’m raising is whether that folk sense of justice transfers to the institutions of justice. A poll in November 2021 found 60% of Americans believe the Supreme Court is motivated “primarily by politics,” while only 32% believe it is “motivated by the law.” That represents a 6 point increase in skepticism in just two years. Bryan Metzger & Oma Seddiq, More than 60% of Americans say the Supreme Court is motivated by politics, while just 32% believe they rule based on law: poll, Insider (Nov. 19, 2021), https://www.businessinsider.com/61-percent-think-supreme-court-motivated-politics-not-law-poll-2021-11. That increase is consistent with the high and growing disapproval (58%) of the Supreme Court. Supreme Court, Gallup, https://news.gallup.com/poll/4732/Supreme-Court.aspx. Against that background, it seems difficult, confidence of the people in their own sense of justice notwithstanding, to imagine courts becoming more interpretively ambitious, and sustaining through that interpretive ambition greater trust from the people. Much more likely, in my view, is that confidence would be weakened even more, as the charge that the institutions were political would become easier to make.

[15] Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 245 (Christopher J. Scalia & Edward Whelan eds., 2017).

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Scalia’s Evolution: A Matter of Admiration – Hon. Andrew S. Oldham

Posted by on Jan 19, 2023 in Per Curiam

Scalia’s Evolution: A Matter of Admiration – Hon. Andrew S. Oldham
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Scalia’s Evolution: A Matter of Admiration

Hon. Andrew S. Oldham*

What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program. A video of the lecture is available online at https://youtu.be/ajftWFpSLzw and the complete written remarks can be accessed at https://www.harvard-jlpp.com/the-2022-herbert-w-vaughan-academic-program.

* * *

It’s always a joy to be back in Cambridge. I went to law school here during Justice Scalia’s Mesozoic era—after his Original period and before his Evolved one. And after I graduated, I clerked for the great Judge David Sentelle on the D.C. Circuit—a mentor I proudly share with Professor Vermeule. In fact, Judge Sentelle loved then and still loves today to brag about his beloved Adrian. Apropos of today’s conversation, Judge Sentelle once relayed to me this quote from Justice Scalia: “Adrian is the only person ever to clerk in the Scalia chambers and the Sentelle chambers and to be a conservatizing influence in both.”

So far be it from me to dispute Professor Vermeule’s understanding of a judicial mentor we did not share. But I have two principal reservations about his take on the Original Scalia. The first is about the facts. And the second is about the law. Then I’ll wrap up with a point on which we agree.

I.               Facts

Let me start with the facts. I struggle to recognize the picture of “Original Scalia” that Professor Vermeule paints. That’s in part because that picture is missing the two most important colors.

When I think about the early or “Original” Scalia, I think of two of his most towering opinions, separated by seven months in the 1988–1989 annus mirabilis. But I was surprised to hear neither mentioned this afternoon. The first was Morrison v. Olson,[1] and the second was Mistretta v. United States.[2] They were 7-1 and 8-1 decisions respectively, with Scalia speaking only for himself—just as he did when he concurred alone in Green v. Bock Laundry[3] and dissented alone in Webster v. Doe.[4] If we focus only on the latter two and ignore the former two, we get at most half the picture of the Original Scalia.

In Morrison, Scalia stood alone in his belief that the independent counsel statute was unconstitutional because it violated the separation of powers, which our Constitution established to “preserve individual freedom.”[5] As Scalia put it, “the Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government. . . . Without a secure structure of separated powers, our Bill of Rights would be worthless.”[6] Scalia saw it as his judicial duty to “effectively . . . resist[]” the “gradual concentration of the several powers in the same department.”[7] Sometimes, he said, threats to the separation of powers “come before the Court clad, so to speak, in sheep’s clothing.”[8] But not always. In the case of the delegation effectuated by the independent counsel statute, the “wolf comes as a wolf.”[9]

Seven months later in Mistretta, Scalia stood alone in concluding that the guidelines promulgated by US Sentencing Commission were unconstitutional. With disgust virtually seething through the pages of the U.S. Reports, Scalia said of the Commission that there is no place in our constitutional system for a “junior-varsity Congress.”[10] He remarked that “[i]t is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: Except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die.”[11]

II.             Law

Why are these cases so important? By all accounts, Morrison and Mistretta rank amongst Justice Scalia’s most meaningful opinions of any kind, at any part of his career. Both are literally in the book The Essential Scalia,[12] and the Justice was known to have been particularly proud of both throughout his career. I’d think any account of the Original Scalia must take account of them.

But the real reason these cases are important is because they tell us about something that was central to Justice Scalia in all his periods—Original, Mesozoic, and Evolved. Namely, the separation of powers. In Morrison and in Mistretta, Scalia railed against Congress’s efforts to delegate powers. He chastised Congress’s efforts to blur the lines between the legislative, executive, and judicial departments. And he even quoted Madison who in turn quoted Montesquieu for the proposition that tyranny results from the concentration of all powers—legislative, executive, and judicial—in the hands of one body.

Of course, Justice Scalia ultimately rejected the nondelegation argument in Mistretta. And he even more forcefully purported to limit the doctrine in Whitman v. American Trucking Associations.[13] But the point is that Justice Scalia was staunchly attendant to the separation-of-powers principles underlying the nondelegation doctrine. Indeed, his only concern about the doctrine was, fittingly, a separation-of-powers concern that judges wouldn’t be able to apply it consistently because “it is not an element readily enforceable by the courts.”[14] That doesn’t mean Original Scalia thought the Constitution could be interpreted to allow carte blanche delegations to administrative agencies. Quite the contrary: “the doctrine of unconstitutional delegation is unquestionably a fundamental element of our constitutional system,” particularly the separation of powers.[15]

So I do not understand how Professor Vermeule can say a goal—much less the “major point”—of Original Scalia’s jurisprudence “was, expressly, to protect and expand the executive power.”[16] To my eyes, Morrison and Mistretta stand for the opposite. Both said the Constitution’s allocations of power must remain inviolate—none can or should be expanded at the cost of any other.

Now, Professor Vermeule is quite right that Original Scalia recognized the distinction between positive law and background unwritten law. (I might disagree that later or Evolved Scalia lost that focus; in my view, all the Scalias recognized the importance of general-law principles in our constitutional order.) But to the extent Original Scalia understood any background principle of general law to trump all others, that paramount principle was the separation of powers. In Morrison, for example, Original Scalia wrote: “[I]t is a truism that constitutional protections have costs. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.”[17]

Those do not sound like the words of a man who thinks courts or administrative agencies have the power to “right every wrong”—or, in Professor Vermeule’s words, to exercise case-specific “dispensations.” Rather, those sound like the words of someone who understands the Constitution to separate governmental powers in a way that places such dispensations out-of-bounds for the sake of preserving a broader constitutional structure and the more general principles of liberty embedded in the document.

III.           Agreement

Finally, a point where Professor Vermeule and I wholeheartedly agree: The question of “who legitimately decides” is of paramount importance. It was important to Aquinas. It was important to the American Founders. And as I believe Morrison and Mistretta illustrate, it was important to Original Scalia.

As far as I can tell, however, it was not the central focus of Original Scalia’s thinking on administrative law. I read and re-read the Administrative Law Lecture[18] that Justice Scalia gave at Duke in 1990 and that Professor Vermeule referenced. That lecture does support Professor Vermeule’s arguments in some ways. For example, he’s quite right that Justice Scalia was more trusting of Chevron in 1990 than he was in later years.

But the lecture doesn’t fit neatly into Professor Vermeule’s theory in other ways. For example, Justice Scalia concludes the lecture by noting that he thinks most statutory text is crystal clear, which means that he will be less willing to reach Chevron’s second step and hence less willing than others might be to defer to agencies’ interpretations.[19] So even in 1990, Original Scalia’s understanding of Chevron’s domain was narrower than most.

And more to the point of the present discussion, no part of that lecture defends Chevron (or any other proposition of administrative law) as an answer to the “who legitimately decides” question. Rather, Scalia’s defense of Chevron in 1990 was pragmatic. He thought it “reflects the reality of government” and hence “adequately serves its needs”—both in terms of Congresses that want to delegate power and agencies that want to wield it.[20] It wasn’t until much later in his career that Justice Scalia confronted the question that hangs over so many of our debates today—namely, even if the natural law tradition had a discernible monolithic content regarding administrative discretion, and even if it’s true that Roman magistrates had significant powers to exercise “dispensation,” what if anything does that say about the original public meaning of our Constitution, its vesting clauses, and the vast array of administrative agencies that do far more than “dispense” today?

When Justice Scalia got around to wrestling with that latter question, his approach was deeply rooted in our Constitution and the debates our Founders had in the 1780s about how We the People should organize the government. It wasn’t, as far as I can tell, rooted in Aquinas. Nor was it necessarily rooted in Aristotle’s Politics, which provides much of Professor Vermeule’s ammo for today’s talk. But I’d suggest that Justice Scalia’s evolution, if it really was one, was rooted in Aristotle’s Ethics. Aristotle thought that a life well lived—a life of virtue—is the pursuit of an unattainable yet still worthwhile ideal. Each of us hopes that the person we are in old age is wiser and further in that pursuit than the person we were at 50, or at 25. That’s why, I think, Justice Scalia wrote in his last full term on the Court: “the life of the law is experience.”[21] Insofar as the Evolved Scalia was a wiser Scalia—one who learned from his decades of experience to examine previously unexamined premises and to seek answers to previously unasked questions—then I’m not sure that’s such a bad thing. Aristotle certainly would’ve admired the effort.

* Circuit Judge, United States Court of Appeals for the Fifth Circuit.

[1] 487 U.S. 654 (1988) (Scalia, J., dissenting).

[2] 488 U.S. 361 (1989) (Scalia, J., dissenting).

[3] 490 U.S. 504 (1989) (Scalia, J., concurring).

[4] 486 U.S. 592 (1988) (Scalia, J., dissenting).

[5] Morrison, 487 U.S. at 727.

[6] Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).

[7] Id. at 698 (quoting The Federalist No. 51 (James Madison)).

[8] Id. at 699.

[9] Id.

[10] Mistretta v. United States, 488 U.S. 361, 427 (1989) (Scalia, J., dissenting).

[11] Id. at 415.

[12] Antonin Scalia, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law 43–48, 53–61 (Jeffrey S. Sutton & Edward Whelan eds., 2020).

[13] 531 U.S. 457, 472–76 (2001).

[14] Mistretta, 488 U.S. at 415.

[15] Id.

[16] Adrian Vermeule, The Original Scalia, 2023 Harv. J. L. & Pub. Pol’y Per Curiam 2, *10 (2023).

[17] Morrison v. Olson, 487 U.S. 654, 710 (1988) (emphasis added) (quotation omitted).

[18] Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 10 J. Nat’l Ass’n Admin. L. Judges 118 (1990).

[19] Id. at 129.

[20] Id. at 130.

[21] Johnson v. United States, 576 U.S. 591, 601 (2015).

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The Original Scalia – Adrian Vermeule

Posted by on Jan 19, 2023 in Per Curiam

The Original Scalia – Adrian Vermeule
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The Original Scalia

Adrian Vermeule*

What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program. A video of the lecture is available online at https://youtu.be/ajftWFpSLzw and the complete written remarks can be accessed at https://www.harvard-jlpp.com/the-2022-herbert-w-vaughan-academic-program. Thanks to the organizers, to Professor Jack Goldsmith for moderating, and to Judge Andrew Oldham and Professor Lawrence Lessig for their helpful thoughts.

* * *

Introduction

I would like to ask us all today to participate in a kind of thought experiment. Actually, what I propose is an exercise in heroic forgetting. I would ask us all to put aside everything we think we know about Justice Scalia’s jurisprudence and imagine we are assessing that jurisprudence as of roughly the late 1980s and for some time after. I will call this version of Scalia “original Scalia.” As we will see, original Scalia turns out to be remarkably different from the Scalia who emerged later in his career and who quite definitely dominates around 2013–2016, a version I will call “evolved Scalia.”

My basic claim will be that original Scalia advanced a view of legal interpretation with two notable features. First, it is entirely consistent with the approach to legal interpretation advanced in the classical legal tradition. Indeed, it is expressly premised on the views of Aristotle, who in turn powerfully influenced St. Thomas Aquinas and the civilian lawyers of the tradition. Although my approach here is emphatically not biographical, but instead based on objective interpretation of Scalia’s published work both judicial and academic, I note that Scalia had a thoroughly classical education at a Catholic high school[1] and at Georgetown University in the 1950s.[2] We should hardly be surprised to discover that his thinking was deeply influenced by this milieu.

Second, original Scalia takes an expansive view of the administrative state; indeed, he defends a view, one with deep classical roots,[3] according to which the executive and the administrative agencies represent the “living voice” of our law.[4] This is an account of the American small-c, unwritten constitutional order that translates and adapts the classical approach to the circumstances of our own institutions.

Evolved Scalia to some degree abandoned or qualified these commitments. In my view the transition from original to evolved Scalia is a kind of synecdoche for a profound transition in the conservative legal movement over roughly the same period, resulting in American legal conservatism becoming increasingly focused on criticism and limitation of the administrative state. Hence my focus will be on the role of the administrative state in Scalia’s thinking, not only because that is my favorite area of law and legal theory, but because that topic has become ground zero for current legal conflicts.

The Annus Mirabilis

In the remarkable period 1988–1989, an annus mirabilis in the sphere of law, Justice Scalia published four major academic articles, all of which are still highly influential in public law theory today, while simultaneously writing some of his most influential opinions. In that year, Scalia published

  • “The Rule of Law as a Law of Rules,”[5] in which, I will claim, his view of judicial interpretation of the law expressly tracks that of Aristotle and Aquinas.
  • “Judicial Deference to Administrative Interpretations of Law,”[6] a leading defense of the Chevron principle of deference to administrative agencies, an article that still structures our debates about Chevron.[7] Here and elsewhere, I will claim, original Scalia advances a vision of administrative agencies as the authorized dispensers of what the classical lawyers would have called aequitas or epikeia, case-specific adjustments necessary in hard cases, when general rules of positive law are ambiguous, silent, incomplete or absurdly broad in the circumstances.
  • “Assorted Canards of Contemporary Legal Analysis,”[8] an article an article that, among other things, offers a withering criticism of clear statement rules—in terms that would easily cover the Court’s recent use of a clear statement rule called the “major questions doctrine” to limit agency regulatory authority.[9]
  • “Originalism: The Lesser Evil”[10] – a defense of originalism principally on public-interest grounds very different than those that later became dominant, as I will explain, although the article also contains the seeds of the later “jurisprudential turn” to more abstract and philosophical justifications of originalism.
  • And finally, in 1988 and 1989, on the judicial side of his work, Scalia wrote separate opinions in Webster v. Doe[11] and Green v. Bock Laundry[12] that appear in a dozen casebooks and that, I will suggest, tried to write into our public law the classical distinction between lex and ius, between posited civil law and general background principles of law not rooted in any particular positive enactment.

Taking these sources together, let me try to outline a coherent interpretation of the thinking of original Scalia. Of course appropriate cautions are necessary. As with all interesting and complicated legal thinkers, coherent interpretations are inevitably somewhat selective. There were latent tensions within Scalia’s thought all along and multiple strands not wholly consistent with one another, and these strands overlapped at any given time. The wheat and the tares grew up alongside one another. Still, there is, I believe, a highly plausible reconstruction of the basic thinking of original Scalia that I will call the model of administrative equity, and that is entirely consistent with the classical legal tradition, and inspired by it in important part.

The Classical Model

To understand this model, we have to begin with the classical legal theory of Aristotle and St. Thomas Aquinas, who closely tracks Aristotle in this regard, and of the ius commune, the mainstream of the classical legal tradition that heavily influenced the Anglo-American common law. As we will see, this classical heritage is a direct and explicit influence on original Scalia. What original Scalia adds is a kind of interpretation, adaptation, development or translation of the classical heritage for the circumstances of the modern administrative state.

The baseline idea of the classical approach, as Aquinas argues, expressly quoting Aristotle, is that laws framed in general terms, as rules, conduce to the overall good of the community.  Although ideally, Aquinas says, “the animate justice [of the living judge] is better than the inanimate justice of the laws,” the problem is that “the animate justice of the judge is not found in many men and . . . can be distorted.” Therefore it is “necessary, whenever possible, for the law to determine what the judgment should be, and for very few matters to be entrusted to the decision of men.” Quoting and citing Aristotle, Aquinas therefore proceeds to defend the proposition that “it is better that all things be regulated by law than left to the decisions of judges.” Both Aristotle and Aquinas, in other words, urge that lawmakers should formulate general laws that address the central or most common cases, and that interpreters should follow those rules insofar as possible.

There are three reasons, Aquinas holds, for this preference for law in the form of general rules: first, it is easier to find a few wise men able to frame general laws than the many wise men who would be needed to judge in every single particular case; second, because those who make the general law do so beforehand and take many instances into consideration, whereas the particular case has to be pronounced as soon as it arises and by itself; and third, because lawmakers think of the rule in the abstract and in general, whereas the judge of a particular case is concerned with concrete singulars present before himself, and thus can be more readily led astray by passion and prejudice. As Aquinas puts it, in terms strikingly similar to Fred Schauer’s excellent piece “Do Cases Make Bad Law?,”[13] “men who sit in judgment . . . may be affected by love or hatred or greed of some kind, and so their judgment may be distorted.”[14] In the classical view, then, there is a strong baseline presumption in favor of adherence to general rules of written law.

The problem, however, as both Aristotle and Aquinas go on to emphasize, is the limits of the legislator’s foresight and the inevitable indeterminacy of general language. As Aquinas puts it, “[s]ince . . . the legislator cannot make provision for every single case, he frames the law according to what happens most frequently, directing his attention to the common good . . . . Moreover, even if a legislator were able to take all cases into consideration, it would not be suitable for him to mention them all, in order to avoid confusion.” Because no legislator can foresee all cases and because no language can, under real world conditions, perfectly express or capture all possible qualifications and exceptions, hard cases inevitably arise, in which the reasoned ordination of the legislator for the central or most common cases fails to track the public welfare or common good, due to unusual case-specific circumstances.

In hard cases of this sort, the classical tradition argues, the interpreter must apply what Aquinas calls “dispensations,” what the Roman lawyers called aequitas, and what Aristotle calls epikeia, the case-specific adjustment of vague, ambiguous or overly general language to particular circumstances, in order to promote the public-regarding ends the legislator had in view. (Do not too quickly assume that the relevant interpreter here is a judge; as we will see shortly, that is a crucial question for both the classical tradition and original Scalia’s modern rendition of it).

On the classical conception, the interpreter applying aequitas emphatically does not step outside of law or do something other than law.[15] Here the terminology of “law” and “equity” that American lawyers took over from the context of the English contrast between common law courts and equity tribunals is potentially gravely misleading. Rather the classical view systematically distinguishes two different senses of law: lex, the positive written civil law, and ius, the law writ large, which the classical lawyers called “the art of the good and equitable”[16] and which includes general background principles of legality and practical reason. This is a distinction that is preserved in many European languages to this day (ley and derecho in Spanish, for example). In English, we often conflate the two, using “right” or “rights” in confusing ways and using a single word “law” to cover both lex and ius. Consider a student saying that “I’m taking administrative law, which is partly about the Administrative Procedure Act,[17] which is a law.” As we will see, however, original Scalia expressly tries to distinguish these two senses.

The classical lawyer draws upon aequitas or epikeia to resolve ambiguities, interpret generalities, or otherwise clarify, limit or supplement the law. (I am eliding here some differences between the Roman and Greek conceptions which are immaterial for present purposes, and eliding an even more fundamental point that aequitas, as a principle of construction, enters into even the understanding of the semantic meaning of posited lex, a point I have explained elsewhere). On this view, to call upon aequitas is not to have recourse to something outside “the law”; rather it is just to do law. It is the application of background principles of law as practical reasonableness to interpret lex and to further its aims. This is why Aquinas speaks of dispensations as departures from the letter of the law, but not from the law itself, just as generations of American classical lawyers and judges would later distinguish “the letter of the statute” from “the statute itself” – a locution that sounds bizarre and self-contradictory to modern textualists.

A final crucial question for the classical approach is: who decides? Who, which legal actor or tribunal, is authorized to make “dispensations” or apply aequitas or epikeia? Here Aquinas is especially instructive—and, as we will see, original Scalia is easily understood to track Aquinas’ account and translate it to the American constitutional order.

At least in non-emergency cases, where there is no sudden risk needing immediate dispensation, Aquinas states that dispensation may be granted only by those who are in authority and have power in similar cases. “It is not competent for everyone to expound what is useful and what is not useful to the state: those alone can do this who are in authority, and who, on account of such like cases, have the power to dispense from the laws.” The “who decides?” question, then, is just another question of the interpretation of the law (in both senses). Although there must be some legal actor in the system with the power of dispensation or aequitas for hard cases, judges need not be that actor; the judges may conclude that the law (again in both senses) itself vests that power in other legal actors, such as—you can already see where I am going, and where Scalia will soon go—executive magistrates or, in our terms, the President and administrative agencies. As the classical law put it, the urban praetor, a magistrate lacking the formal authority to enact a lex, nonetheless has the authority to “aid, supplement or correct” the civil law “in the public interest” (propter utilitatem publicam). The resulting body of magisterial law is, the classical jurists say, the “living voice” of the civil law.

Administrative Equity

So much for the basic structure of classical legal interpretation. In the scholarship written during his annus mirabilis, especially the “Rule of Law as a Law of Rules,”[18] his Chevron piece, [19] and his famous separate opinions in Webster v. Doe[20] and Green v. Bock Laundry,[21] Scalia follows this path of thought in quite express terms. It is just that current American law professors, many of whom are unfamiliar with the classical legal heritage, have failed to understand the background influences on Scalia’s thought.

In “The Rule of Law as a Law of Rules,” [22] Scalia begins with a famous image of “the animate justice of the judge”—Louis IX dispensing case-specific justice under an oak tree.[23] For Scalia, as for Aristotle and Aquinas, however, general rules of law are preferable. This isn’t some sort of inference; it is what Scalia himself says. He writes in the Law of Rules article that “[i]n his Politics, Aristotle states:

Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.”[24]

The passage Scalia selected for quotation here was close to his heart; he concludes the main argument of the lecture by repeating the whole quotation in full, including the part about the difficulty of framing general rules for all contingencies, and saying “I stand with Aristotle—which is a pretty good place to stand.”[25] The passage summarizes, very crisply, both sides of the classical framework, both the presumptive textualism of general rules, and the inevitability of hard cases that call for aequitas, epikeia or dispensation. Scalia emphasized this at the end of the lecture, saying “let me call attention to what I have not said. I have not said that legal determinations that do not reflect a general rule can be entirely avoided.”[26]

Crucially, moreover, original Scalia emphatically denies that the preference for general rules, and the duty of the courts to follow the law, implies that courts do not make policy judgments in particular cases. For original Scalia, “policy” and “law” are not antonyms; rather the making of “policy” judgments just is itself part of the traditional practice of legal adjudication. To further this point, let me tax your patience with the quotation of a crucial passage from the Chevron article,[27] which I suggest is classical both in express terms and in its overall thrust:

The “traditional tools of statutory construction” include . . . quite specifically, the consideration of policy consequences. Indeed, that tool is so traditional that it has been enshrined in Latin: “Ratio est legis anima; mutata legis ratione mutaturet lex.” (“The reason for the law is its soul; when the reason for the law changes, the law changes as well.”) Surely one of the most frequent justifications courts give for choosing a particular construction is that the alternative interpretation would produce “absurd” results, or results less compatible with the reason or purpose of the statute. This, it seems to me, unquestionably involves judicial consideration and evaluation of competing policies . . . to determine which one will best effectuate the statutory purpose.[28]

This passage is remarkable. It expressly draws upon the fundamental classical concept, complete with Latin maxim, that the law consists of reason as well as fiat, principle as well as dictate, and that when reason runs out, so does the interpretation of law as lex. Even lex is to be understood as an ordination of reason—one of the essential elements of Aquinas’ definition of law as an ordination of reason to the common good. (Parenthetically, to complete the classical definition by adding the last element, the common good or public interest or benefit, we will shortly see that original Scalia also thinks, and says, quite in the style of the classical lawyers, that it is a “fundamental” feature of all law that it must be understood as ordered to the public interest rather than private interests). And, more remarkably still, the passage is emphatic that evaluation of “policy” is part of the traditional judicial armory—a claim that would shock those for whom anything of the sort amounts to “result-oriented judging.”

But what exactly does Scalia mean by “policy” here? In the very same year 1989, in his concurrence in Green v. Bock Laundry, [29] original Scalia helpfully explained his conception. Nowadays, the Bock Laundry concurrence is cited mostly as an early statement of Scalia’s critique of legislative history.[30] The concurrence combines that critique, however, with a clear recognition that judges should apply a doctrine of “absurd results” when necessary,[31] using legislative history to identify absurdity, and with the view that the ordinary meaning of statutory text should be read in the way “most compatible with the surrounding body of law into which the provision must be integrated—a compatibility which, by a benign fiction, we assume Congress always has in mind.”[32] Most importantly, however, Scalia argued that the interpretation he advanced in Bock Laundry was preferable not only because it avoided an absurd result, but because (and this is in a sense just a restatement of the need to avoid absurd results) it was the interpretation that was “consistent with the policy of the law in general”[33]in Bock Laundry, the general legal policy of “providing special protection to defendants in criminal cases.”[34] This is not merely a claim that one must read the whole code or anything of that sort. There is no single positive provision or even amalgam of positive provisions that encodes such a general legal policy, as opposed to specific protections for defendants; rather, it is a powerful background principle that informs the law generally, indeed an ancient principle of the ius commune. Rather than referring to positive law, Scalia’s formulation here, “the policy of the law in general”[35] is an excellent modern formulation or translation of ius.

If in 1989 Scalia glossed “policy” as “the policy of the law in general,”[36] then don’t we have to know, after all, which sense of “law” he meant in this setting? We do, and happily he had explained that too the year before, in his 1988 partial dissent in Webster v. Doe,[37] probably the best exposition of ius to appear in the U.S. Reports since roughly World War II. In fact, the Webster dissent offered not merely an account of law, but an interpretation of the statutory term “law” itself,[38] as used in the famously delphic Section 701(a) of the Administrative Procedure Act[39] on reviewability of administrative action, which provides that “this chapter applies . . . except to the extent that . . . (1) statutes preclude judicial review or (2) agency action is committed to agency discretion by law.”[40]

The majority opinion by then-Chief Justice William Rehnquist, following a notoriously cryptic treatment in two earlier decisions,[41] read this provision to exempt agencies from judicial review when there is “no law to apply,” such that the agency enjoys a law-free zone of discretion.[42] This reading is strikingly reminiscent of the thin legal ontology of Hartian positivism, in which there is posited law (lex), and zones of a legal “discretion,” and nothing else.

Scalia read the provision very differently, observing that there is always some law to apply: “There is no governmental decision that is not subject to a fair number of legal constraints precise enough to be susceptible of judicial application—beginning with the fundamental constraint that the decision must be taken in order to further a public purpose rather than a purely private interest”[43] (a fundamental constraint for which he cited no positive constitutional provision). This claim that the public interest is the omnipresent and implicit aim or end of all law, and correlatively a constraint on the exercise of public authority, is one that would have had classical lawyers nodding in agreement. As the comparativist Elisabeth Zoller put it, citing the 3d century A.D. imperial lawyer UIpian, “Public law, in the sense first defined by the Romans, is the law of res publica, literally the public thing, that is, the public interest or common good . . . .”[44]

If for Scalia the fundamental ordering of law to the public interest means there is always law to apply, what then is the right interpretation of 701(a)(2)?[45] What exactly does the provision mean when it says that agency action may be “committed to agency discretion by law”?[46] Original Scalia’s account hinges, expressly, on a distinction between positive statutory provisions, on the one hand, and more general principles of “law” on the other—between lex and ius. Here is what Scalia said:

The key to understanding the “committed to agency discretion by law” provision of § 701(a)(2) lies in contrasting it with the “statutes preclude judicial review” provision of § 701(a)(1). Why “statutes” for preclusion, but the much more general term “law” for commission to agency discretion? The answer is that the latter was intended to refer to . . .  a body of jurisprudence that had marked out, with more or less precision, certain issues and certain areas that were beyond the range of judicial review. That jurisprudence included principles ranging from the “political question” doctrine, to sovereign immunity . . . , to official immunity, to prudential limitations upon the courts’ equitable powers, to what can be described no more precisely than a traditional respect for the functions of the other branches….[47]

Note here that the “principles” to which he refers, although adopted by courts, were adopted as a recognition of existing law in the sense of ius. The sovereign immunity of the United States, for example, was originally identified as a general inherent background principle of law. As the Court put it in United States v. Lee[48] in 1882, the “principle” of sovereign immunity “has been adopted in our courts as a part of the general doctrine of publicists” [49]—referring, in the language of the day, to the classical juristic doctrines of the ius gentium or law of nations. The key to understanding Scalia’s account of reviewability, then, is that he draws a distinction between law as lex and law as ius.

I am almost done reconstructing the views of original Scalia. The last question is the question I adverted to earlier: who decides? Recall that on the classical view, it is a separate question who exactly is authorized to apply interpretive aequitas or epikeia. Who holds this authority in the circumstances of the administrative state? No direct transliteration or transcription of the classical view is possible, because of changes in the structure of institutions over time; rather what is necessary is a translation that preserves the underlying principles on the classical approach in a new setting.

Original Scalia solves this problem with, in effect, an argument for a parceling and division of the traditional interpretive functions between courts and agencies. A critical limitation of the thesis in The Rule of Law as a Law of Rules[50] is that original Scalia repeatedly and expressly limits “the rule of law as a law of rules” to decisionmaking by and in courts. This is because, for original Scalia, the administrative state is, above all, the locus of authorized case-specific dispensing power—the place in which general statutory schemes are adjusted, in hard cases of indeterminacy, to the public interest.[51] As he puts it in 1989, “broad delegation to the Executive is the hallmark of the modern administrative state,”[52] and whereas “the legislature generalizes . . .  [e]xecutives and judges handle individual cases.”[53] The executive and the administrative agencies, then, are the ones authorized to apply case-specific adjustments to the law where there are gaps and ambiguities under Chevron.

In order to enforce this delegation, Scalia argues, we must reject any idea that Chevron deference is a mere residual that applies only when judges have exhausted all the “traditional tools of statutory construction.”[54] As original Scalia protested in his 1987 concurrence in INS v. Cardoza-Fonseca,[55] “this approach would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation, but an evisceration, of Chevron.”[56] Rather, original Scalia’s view of Chevron rests on exactly the sort of “benign fiction,” based on the overall “policy of the law in general,” law-as-ius, that Scalia urged in Bock Laundry.[57] Here the benign fiction is that Congress should be taken to have, as a general default rule, authorized agencies to resolve hard cases by filling statutory gaps and ambiguities. As the Chevron article[58] put it: “any rule adopted in this field represents merely a fictional, presumed intent.”[59]

All this translates into the world of the administrative state the classical view that magistrates lacking the power to enact statutes can nonetheless serve as the “living voice of the law.”[60] Original Scalia’s view in effect takes the two distinct interpretive functions identified by the classical tradition—that of following and implementing general rules, and that of dispensing adjustments in hard cases – and divides them across institutions to the extent possible, urging that courts follow general rules of lex so far as possible, while also reading the policy of the law generally (ius), attributed to Congress “by a benign fiction,”[61] to authorize agencies to wield the dispensing power. This is, in effect, a particular determination or specification of the classical view for our constitutional order, the administrative state.

Original Originalism

So far I have said little about originalism at the level of constitutional interpretation, but the originalism of original Scalia in many respects—and with one important exception I will mention shortly—fits this picture well. In “Originalism: The Lesser Evil,”[62] Scalia argues at some length that adjudication based on the original public meaning better constrains judicial discretion than do the available alternatives, and thereby promotes the public interest. This is a point about adjudication, strictly. Nothing in this picture at all suggests that originalist interpretation is required by the very idea of written law, or written constitutions, or inherent in the nature of communication, or anything of that sort. Scalia also expressly concedes that “originalism is not, and ha[s] perhaps never been, the sole method of constitutional exegesis.”[63] In other words, because of the inevitable indeterminacy, vagueness and generality of constitutional language, originalism cannot be a complete account of constitutional interpretation. Indeed, as I will mention shortly, original Scalia was simultaneously casting about for non-originalist methods for coping with indeterminacy. And, finally, his major point in arguing for originalism as a constraint on judicial discretion was, expressly, to protect and expand executive power; his main and almost only example in the article is the expansive decision on presidential power in Myers v. United States,[64] which he takes to be justifiable on originalist grounds.[65] Scalia’s original originalism, as it were, had an institutional point, broadly the same point we have already seen: to tether judicial discretion to the implementation of general rules, insofar as possible, in order to allocate discretionary exercise of judgment in particular cases to the executive.

Indeed, original Scalia in a sense does not ultimately care about originalism at all. Originalism is a contingent mechanism for implementing the first plank of the Aristotelian and classical interpretive program—tethering judges to rules. Another mechanism for doing so might, on one view anyway, be tradition. Scalia makes this quite express in “The Rule of Law as a Law of Rules,”[66] arguing that “even if one rejects an originalist approach, it is easier to arrive at categorical rules if one acknowledges that the content of evolving concepts is strictly limited by the actual practices of the society, as reflected in the laws enacted by its legislatures” or “an established social norm.”[67]

Thus a distinct branch of Scalia’s constitutional jurisprudence, exemplified by his plurality opinion in Michael H. v. Gerald D.,[68] decided in—you guessed it—1989, addresses the critical problem that constitutional provisions may be interpreted at multiple levels of generality. Many have argued that originalism is helpless to cope with this problem, because original public meaning necessarily lacks the theoretical grounds to dictate at what level of generality the original public meaning should be read; any such claim would be logically circular. In Michael H., Scalia, quite aware of this problem, turns to tradition, and argues that “[i]n an attempt to limit and guide interpretation of the [due process] Clause, we have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society”[69]—with such traditions interpreted at “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified,” because “general traditions provide such imprecise guidance” and permit “arbitrary decisionmaking.”[70] Whether or not that approach is successful—I do not think it is—the larger point is that, as Scalia was writing simultaneously in academic articles, originalism was just a means to the Aristotelian end of tethering judges as far as possible to rules. If traditionalism defined at a low level of generality turned out to be a better means for doing so, then Scalia would cheerfully abandon originalism for traditionalism.

There is, however, a passage in “Originalism: The Lesser Evil”[71] that sounds a discordant note, one that would swell over time. Here Scalia attempts to ground originalism in the very nature of constitutional judicial review, arguing that “in its nature the sort of ‘law’ that is the business of the courts [must be] an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.”[72] To be sure, this is not yet the full “jurisprudential turn” that many have diagnosed in the dizzying array of post-Scalia versions of originalism, many of which attempt to ground originalism in the very nature of law, or language, or constitutions, or the Constitution, or really anything other than a contingent judgment about the public interest. But it does presage that turn, and foreshadows the coming of evolved Scalia.

Evolution

For a long period after his annus mirabilis, original Scalia elaborated upon the basic commitments of the model I have laid out. We see him in the 1980s and 1990s defending Chevron against efforts by Justice Stevens and others to issue narrowing interpretations of the decision, and endorsing the doctrine of “absurd results” in that context;[73] writing standing decisions that protected executive authority from judicial oversight;[74] authoring Auer v. Robbins,[75] the famous or infamous decision that requires courts to defer to reasonable agency interpretations of their own regulations, in 1997; writing, in 2001, one of the Court’s most expansive modern precedents rejecting a claim under the putative non-delegation doctrine;[76] and, as late as 2012, authoring the remarkable decision in City of Arlington v. FCC,[77] holding that there is no “agency jurisdiction” exception to Chevron deference. Original Scalia was long known as the Court’s champion of Chevron, of the administrative state, and of presidential power. Justice Gorsuch, the Court’s major critic of Chevron, recently recognized original Scalia’s role as Chevron’s champion in a lone dissent from denial of certiorari.[78]

Change, however, is the destiny of mankind, and something did very much change over time, especially towards the very end of Justice Scalia’s career. The contrast with evolved Scalia grows over time, albeit inconsistently, and with important divergences between academic writings and judicial practice. Already by 1997, when Justice Scalia writes his Tanner Lectures published under the title A Matter of Interpretation: Common Law Courts in a Civil Law System,[79] he criticizes the Holy Trinity decision,[80] spars with Dworkin about the problem of levels of generality, and in general has become distinctly stricter in his textualism. Still, though, even in those lectures he says that the aim of interpretation is to “look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris,[81] a standard classical term for the whole body of the law in general; quotes and endorses the claim that “the rules of the countless administrative agencies [are] themselves an important, even crucial, source of law;”[82] and preserves a diplomatic silence about his previous reliance on the absurdity doctrine. In general, his theory and his practice diverge; as of 2002, five years after the Tanner Lectures, he is still endorsing something like the absurdity doctrine in judicial opinions, invoking “reason” as a guide to statutory interpretation.[83] It is only later that the practice fully catches up to the changing theory.

Let us zoom forward to the period circa 2013–2016, when an entirely different model emerges. We see evolved Scalia actually repudiating his own opinion in Auer and now rejecting judicial deference to agency interpretations of their own regulations. We see him indicating a willingness to reconsider his views about Chevron. More broadly, we see evolved Scalia becoming increasingly critical of the administrative state and increasingly reliant on a simplistic distinction between law and result-oriented policy, conceived as outside of law—a direct contradiction of his earlier views.

Rather than rehash his late opinions, let me instead mention a remarkable episode in January 2016, barely a month before Justice Scalia’s death. Scalia was invited to the Dominican House of Studies in Washington and elected, rather boldly given the expertise of the audience, to speak on “St. Thomas Aquinas and the Law.”[84] (Aquinas was a Dominican friar). He says that “despite my veneration for Thomas Aquinas, I plan to contradict what Aquinas says about judging . . . . It is necessary to judge according to the written law—period.”[85] He addresses the role of dispensation in Aquinas’ theory, which to repeat is just part of the Aristotelian theory Scalia had previously defended (“I stand with Aristotle”), and compares it to the judicial approach of William Brennan.[86] He makes no mention whatsoever of the administrative state or the role of agencies in interpretation. He even, in response to a question about Nuremberg, denies that there is any basis in higher law for holding Nazi officials accountable.[87] “To justify the war trials, he instead simply maintained that, as he saw it, winners in a war have a right to punish the losers.”[88] The Scalia of 1989, whose views so closely tracked the classical structure of interpretive theory, is nowhere to be seen. And his jurisprudence has become flattened and simplified.

Scalia as Synecdoche

It is beyond the scope of my aims here to offer an explanation as to why, exactly, this evolution occurred, if such it may be called. But let me close with two observations—inevitably controversial observations—about the larger significance of my distinction between original and evolved Scalia.

First, Justice Scalia’s intellectual odyssey in many ways recapitulates and provides a synecdoche for the transformation of the conservative legal movement in the same period. As of 2022, the movement is operationally dominated by a libertarian strand of American conservatism that is intensely suspicious of the administrative state, while officially denying that it has any substantive views. This libertarianism in the lion’s skin of Scalia’s methods is nonetheless entirely willing to abandon the larger structure of original Scalia’s classical jurisprudence and his model of a strong administrative state, led by a strong presidency. Don McGahn, former White House counsel under President Trump, who played a crucial role in the selection of Justices Gorsuch and Kavanaugh, assessed the situation in an episode recounted by Ruth Marcus in a recent book.[89] “As McGahn . . . told the Federalist Society, ‘The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.’ . . . It was now all about regulatory relief. On that score, McGahn said, Scalia ‘wouldn’t make the cut.’”[90] In my view McGahn was quite right, given his own premises and aims. In the conservative legal moment as it currently stands, the jurisprudence of original Scalia has no place.

Second, and conversely, the revival of classical legal theory is in many ways an attempt to return to original Scalia, in preference to evolved Scalia. Unsurprisingly, perhaps, this is roughly the structure of the interpretation of the American administrative state that I and other scholars have offered in recent work. I believe or at least hope that is not because I am projecting my views onto Scalia, but quite the reverse, because Scalia impressed his views onto me, so that my views are consistent with and amplify upon those of original Scalia, whose views were in turn consistent with and translate those of the classical tradition. At a minimum, however, I hope that when libertarian originalists claim continuity with Scalia’s views, we will get in the habit of asking “which Scalia? Original or evolved?” In this case, if no other, I proudly count myself an originalist.[91]

* Ralph S. Tyler Jr. Professor of Constitutional Law, Harvard Law School.

[1] Joan Biskupic, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia 21 (Farrar, Straus and Giroux 2009) (Scalia earned a scholarship to Xavier High School, an all-boys Jesuit institution in lower Manhattan).

[2] Id. at 25 (Graduating valedictorian in 1957).

[3] Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022).

[4] Id. at 38.

[5] Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).

[6] Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1988 Duke L.J. 511 (1989).

[7] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[8] Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581 (1989).

[9] W. Virginia v. Env’t Prot. Agency, 213 L. Ed. 2d 896 (2022).

[10] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).

[11] Webster v. Doe, 486 U.S. 592 (1988).

[12] Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989).

[13] Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883 (2006).

[14] Schauer’s version further explains: “[W]hen decisionmakers are in the thrall of a highly salient event, that event will so dominate their thinking that they will make aggregate decisions that are overdependent on the particular event and that overestimate the representativeness of that event within some larger array of events . . . [Additionally] the phenomenon of anchoring suggests that even the judge who is aware of the pitfalls of availability may be hindered in her ability to overcome them, especially because there is evidence that anchoring is particularly resistant to a range of awareness-based debiasing techniques.” See id. at 894–97.

[15] See H.F. Jolowicz, Roman Foundations of Modern Law 56 (1957) (“For [the Roman jurists] aequitas remains closely connected with law; it is a criterion of the correctness of law, and a principle of construction, not a contrasting principle”); J.M. Kelly, A Short History of Western Legal Theory 53 (1992) (“aequitas conveyed no separate standard recognized by the Roman system as qualifying the law”).

[16] Digest of Justinian 1.1.1 pr “Ius est ars boni et aequi.”

[17] 5 U.S.C. §§ 551–559 (1946).

[18] Scalia, supra note 5.

[19] Scalia, supra note 6.

[20] 486 U.S. 592 (1988).

[21] 490 U.S. 504 (1989).

[22] Scalia, supra note 6.

[23] Id. at 1175–76.

[24] Id. at 1176.

[25] Id. at 1182.

[26] Id. at 1186–87.

[27] Scalia, supra note 6.

[28] Id. at 515.

[29] 490 U.S. 504 (1989).

[30] Justice Scalia argues that the Court’s opinion in Bock Laundry devoted “four fifths of its substantive analysis” to legislative history and other public materials, “[going] well beyond” what is necessary. See id. at 527–28 (Scalia, J., concurring).

[31] For example, in Bock Laundry, the Court was confronted “[W]ith a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word ‘defendant’ in [the statute] that avoids this consequence.” See id. at 527 (Scalia, J., concurring).

[32] Id. at 528.

[33] Id. at 529.

[34] Id.

[35] Id.

[36] Id.

[37] 486 U.S. 592 (1988).

[38] See id. at 608 (Scalia, J., dissenting).

[39] Administrative Procedure Act, 5 U.S.C. § 701(a) (2011).

[40] 5 U.S.C. § 701(a).

[41] See Webster, 486 U.S. at 599–600 (citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971); Heckler v. Chaney, 470 U.S. 821 (1985)).

[42] Id. at 600 (holding that the language of § 102(c) of the NSA was strongly in favor of deference to the CIA Director concerning the employee’s termination to the extent that, “Short of permitting cross-examination of the Director . . . we see no basis on which a reviewing court could properly assess an Agency termination decision.”).

[43] Id. at 608 (Scalia, J., dissenting).

[44] Elisabeth Zoller, Public Law as the Law of the Res Publica, 32 Suffolk Transnat’l L. Rev. 93, 95 (2008).

[45] Administrative Procedure Act, 5 U.S.C. § 701(a)(2) (2011).

[46] Id.

[47] Webster, 486 U.S. at 608–09 (Scalia, J., dissenting).

[48] 106 U.S. 196 (1882).

[49] Id. at 206.

[50] Scalia, supra note 5.

[51] See id. at 1182–83. (Explaining courts’ difficulties in processing generalities: “In the case of court-made law, the ‘difficulty of framing general rules’ arises not merely from the inherent nature of the subject at issue, but from the imperfect scope of the materials that judges are permitted to consult . . . [T]he trick is to carry general principles as far as it can go in substantial furtherance of the precise statutory or constitutional prescription.”).

[52] Scalia, supra note 6, at 516.

[53] Scalia, supra note 5, at 1176.

[54] See Scalia, supra note 6, at 515 (explaining that, along with text and legislative history, “the consideration of policy consequences” is part of the “traditional judicial tool-kit.” Chevron deference should occur “Only when the court concludes that the policy furthered by neither textually possible interpretation will be clearly ‘better’ . . . [B]ut the reason it yields is assuredly not that it has no constitutional competence to consider and evaluate the policy.”).

[55] 480 U.S. 421 (1987).

[56] Id. at 454 (Scalia, J., concurring).

[57] See Bock Laundry, 490 U.S. at 528–29 (Scalia, J., concurring).

[58] Scalia, supra note 6.

[59] Id. at 517.

[60] Vermeule, supra note 3, at 38.

[61] Bock Laundry, 490 U.S. at 528 (Scalia, J., concurring).

[62] Scalia, supra note 10.

[63] Id. at 852.

[64] 272 U.S. 52 (1926).

[65] See Scalia, supra note 10, at 852 (explaining that in Myers, the Chief Justice used “the text of the Constitution and its overall structure, the contemporaneous understanding of the President’s removal power, . . . what ‘executive power’ consisted of under the English constitution, and the nature of the executive’s removal power under the various state constitutions in existence when the Constitution was adopted”).

[66] Scalia, supra note 5.

[67] Id. at 1184–85.

[68] 491 U.S. 110 (1989).

[69] Id. at 122.

[70] Id. at 127 n.6.

[71] Scalia, supra note 10.

[72] Id. at 854.

[73] INS v. Cardoza-Fonseca, 480 U.S. at 452 (Scalia, J., concurring) (“[I]f the language of a statute is clear, that language must be given effect—at least in the absence of a patent absurdity.”).

[74] See Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).

[75] 519 U.S. 452 (1997).

[76] Whitman v. Am. Trucking Associations, 531 U.S. 457 (2001) (holding that agencies may not consider financial impacts when making regulations).

[77] City of Arlington, Tex. v. F.C.C., 569 U.S. 290 (2013).

[78] See Buffington v. McDonough, No. 21-972, 2022.

[79] See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3, 3–48 (Amy Gutmann ed., rev. ed. 2018).

[80] Id. at 22 (“[T]he [Holy Trinity] decision was wrong because it failed to follow the text. The text is the law, and it is the text that must be observed.”).

[81] Id. at 17.

[82] Id. at 13.

[83] See Great-West Life & Annuity Co. v. Knudson, 534 U.S. 204, 217–18 (2002) (per Scalia, J.) (“[I]t is our job to avoid rendering what Congress has plainly done . . . devoid of reason and effect.”) (emphasis omitted). See also Hartford Underwriters v. Planters Bank, 530 U.S. 1, 6 (2000) (per Scalia, J.) (“As we have previously noted . . . when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.”) (internal citation and quotation omitted).

[84] See Antonin Scalia, Address for the 800th Anniversary of the Order of Preachers (Jan. 7, 2016), in Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 243, 243–49 (Christopher J. Scalia & Edward Whelan eds. 2017).

[85] Id. at 246.

[86] Id. at 245.

[87] See Anthony Giambrone, Scalia v. Aquinas: Lessons from the Saint for the Late, Great Justice, Am. Mag. (Mar. 1, 2016), https://www.americamagazine.org/issue/who-judge [https://perma.cc/6A5M-ECGD].

[88] Id.

[89] Ruth Marcus, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover (2019).

[90] Id. at 64.

[91] Judge Oldham, in his response at the lecture, raised the question how Justice Scalia’s dissents in the Morrison and Mistretta cases square with the original Scalia’s jurisprudence, citing them as examples of Justice Scalia’s adherence to the separation of powers. See Andrew Oldham, Scalia’s Evolution: A Matter of Admiration, 2023 Harv. J. L. & Pub. Pol’y Per Curiam 3 (2023) (discussing Morrison v. Olson, 487 U.S. 654 (1988) and Mistretta v. United States, 488 U.S. 361 (1989)). The reason I did not mention Morrison in the lecture is that I thought it obvious that and how it fit the thesis: it is just another illustration that, at the constitutional level, original Scalia’s main point in deploying pragmatic originalism that constricts judicial discretion was to protect and enhance presidential power, as I discussed above with reference to his treatment of the Myers case. See the text accompanying notes 62–63 above. As for Mistretta, immediately following the portion of the Mistretta dissent from which Judge Oldham derives the thrust of his concerns, Justice Scalia rejects the petitioner’s non-delegation claim and explains at some length why courts are not a suitable institution for enforcing nondelegation claims of the usual kind.

This also explains my reaction to Judge Oldham’s broader point. Judge Oldham seems to think that the separation of powers is inconsistent with the views of original Scalia, but it is entirely unclear why one would think that. In these cases and elsewhere, original Scalia does not deny the validity of the separation of powers, nor have I claimed that he did. Rather, what I have claimed is that he offers a particular interpretation of the separation of powers—an account of how to allocate classical interpretive functions in a way suitable to the different powers and capacities of the branches. So too, original Scalia’s basic view of nondelegation—that it is unsuitable for judicial enforcement—itself rests on a particular understanding of the separation of powers, not a repudiation of it. In my view, then, Judge Oldham relies on generalities about the separation of powers for far more than they can possibly deliver, and the Morrison and Mistretta dissents are in perfect harmony with the underpinnings of original Scalia and the classical tradition.

Professor Lessig, in his clever and engaging response, contends that the classical legal tradition requires epistemological and ontological assumptions about law that our pervasively legal-realist culture—one ever skeptical of the political motives that impel government decisions—is no longer capable of. See Lawrence Lessig, Scalia the Legal Sociologist, 2023 Harv. J. L. & Pub. Pol’y Per Curiam 4 (2023). I’m not sure, however, who is the “we” referred to in this picture. Recent work in experimental jurisprudence, in particular a superb article called “The Folk Concept of Law: Law is Intrinsically Moral,” tells a different story. See Brian Flanagan & Ivar R. Hannikainan, The Folk Concept of Law: Law is Intrinsically Moral, 100 Australasian J. of Phil. 165–79 (2022). The paper identifies widespread public intuitions about law that are morally inflected, and that fit the classical tradition in express terms, such as the intuition that “an evil rule is not a fully-fledged instance of law.” (Compare Aquinas’ view that an unjust law is an instance of perverse or corrupt law). The key question, then, is whether the legal-realist  culture to which Professor Lessig refers is “our” legal culture in any broad sense, or rather is the legal culture of a very small set of academics at a very small set of elite schools who are committed to a virulent form of legal realism that thinks “politics” determines all interesting judicial decisions, at least in hard cases. In my view, that form of legal realism is rarely found in the broader culture; rather it is a product that law professors push on their students, a kind of intellectual opiate that the recipients resist until they become addicted to it. There is no deep underlying reason why this process of acculturation into legal realism must occur in the first place; it is a choice we make, and we could do otherwise.

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The 2022 Herbert W. Vaughan Academic Program

Posted by on Jan 19, 2023 in Per Curiam

The 2022 Herbert W. Vaughan Academic Program

JLPP: Per Curiam is thrilled to publish the remarks delivered at the 2022 Herbert W. Vaughan Academic Program. The program featured a lecture by Professor Adrian Vermeule and responses by Judge Andrew S. Oldham and Professor Lawrence Lessig. A video of the program is available online at https://youtu.be/ajftWFpSLzw, and the written remarks can be accessed here:

The Original Scalia – Adrian Vermeule

Scalia’s Evolution: A Matter of Admiration – Hon. Andrew S. Oldham

Scalia the Legal Sociologist – Lawrence Lessig

Thanks to everyone involved in putting this together.

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