Amicus With Dahlia Lithwick | “The Contradictions of Antonin Scalia”

Episode Date: February 20, 2016
Host: Dahlia Lithwick
Guests: Akhil Reed Amar (Sterling Professor of Law and Political Science, Yale) & Rachel Barkow (Professor of Regulatory Law and Policy, NYU Law School; former Scalia clerk)

Main Theme

In the wake of Justice Antonin Scalia’s unexpected death, Dahlia Lithwick explores his complex and often contradictory legacy—not as a political lightning rod, but as a legal thinker, colleague, and mentor. The episode dissects Scalia’s philosophies of interpretation, his personality both on and off the bench, his impact on the Supreme Court, and the nuances that made his influence unique.

Key Discussion Points and Insights

The Significance of Scalia’s Passing (00:05–05:15)

• Lithwick: Sets the context of Scalia’s death, emphasizing its dramatic impact on the 2016 presidential election and potential to shift the Supreme Court’s ideological balance (00:32).
• Akhil Amar:
  • Describes Scalia’s persona as "operatic," larger-than-life, and influential beyond the court’s walls.
  • Notes this is the end not just of a personal era but a judicial one, as for 44 years Republican appointees held a majority on the Court (03:01–05:15).
  • Highlights the intensity of political reactions stemming from the possibility of Democrats regaining control of the Supreme Court.

Scalia’s Interpretive Philosophies: Textualism, Originalism, and Judicial Restraint (05:15–12:11)

• Textualism:

  • Focuses on the “original public meaning” of legal texts, prioritizing what the words meant when adopted (05:15–06:00).

• Originalism:

  • Concentrates on the “original intent” of the framers and ratifiers (05:44).

• Strict Constructionism:

  • Often confused with the above, but signifies a narrow reading of the law, which Amar points out is not the same (05:38).

• Judicial Restraint/Humility:

  • The belief judges shouldn’t overturn legislative decisions lightly, but Amar highlights the tension between these schools—following text vs. precedent vs. restraint (06:40–09:29).
  • Scalia often advocated overturning precedent in favor of text and history, a contradiction in his "judicial humility" stance.

• Notable Quote:

  • “Sometimes you have to choose between text on the one hand and, say, precedent on the other.” — Akhil Amar (09:53)

• Case Studies:

  • Brown v. Board of Education as an example where textualism (the word “equal”) could conflict with precedent (Plessy v. Ferguson), and how Scalia’s approach sometimes blurred these lines.
  • Bush v. Gore critiqued as an activist and partisan decision, lacking textual or historical support (10:20).

• Notable Quote:

  • “In Bush vs Gore, there really weren’t any precedents supporting what the Court did...the text of the Constitution really didn’t support this intervention.” — Akhil Amar (11:14)

Scalia in His Own Words: The Defense of Originalism (12:11–14:10)

• Clip: Scalia explains originalism as bringing clarity and predictability, stating that for many controversial questions, applying the original meaning is “a piece of cake.” (12:47)

  • “It doesn’t take a whole lot of history to figure out that nobody thought the Bill of Rights stopped a state from prohibiting abortion...so many of the most controversial questions—it’s a piece of cake.” — Antonin Scalia (13:34)

• Lithwick & Amar Reaction:

  • Amar points out inconsistencies—Scalia would sometimes defer to precedent where convenient, such as retaining the exclusionary rule, while being rigid elsewhere, without justifying the distinction (14:23).
  • Critiques Scalia for often simplifying complex historical or legal problems.

“Faint-Hearted Originalism” and the Progressive Originalist Tradition (17:02–20:56)

• Lithwick: References Scalia’s self-description as a “faint-hearted originalist” and his willingness to not be “a nut.”
• Amar:

  • Highlights that pure originalism is unworkable and that judgment/pragmatism inevitably enter.

  • Introduces Justice Hugo Black as a liberal originalist/textualist, underscoring that these interpretive choices aren’t the exclusive preserve of conservatives (18:20–20:02).

  • “I wouldn’t want our listeners to think that originalism and textualism are games only conservatives can play.” — Akhil Amar (19:10)

The Challenge of Originalism in a Modern World (20:56–25:36)

• Cartoonish vs. Serious Originalism:
  • Lithwick recalls moments where Scalia, in oral arguments, invoked the worldview of the 18th-century framers to modern technologies (video games, GPS), prompting skepticism (21:05).
• Amar:
  • At Scalia’s best, he abstracted constitutional principles (e.g., privacy of the home) and applied them to new situations, as in Kyllo v. United States (thermal imaging, 22:04–25:36).
  • Critiques the rigidity of “brittle” originalism and notes its limitations when pressed beyond simple cases.

Originalism: Conservative Bias or Principled Method? (25:36–30:48)

• Lithwick: Raises concerns that originalism perpetuates 18th-century worldviews, harming women and minorities (26:01).
• Amar:

  • Criticizes Scalia for stopping at the Founding, neglecting the Reconstruction Amendments and 20th-century constitutional advancements (26:39).

  • Emphasizes that a serious originalist must account for historical development and ever-expanding notions of equality (28:00).

  • “The biggest critique of Justice Scalia might be he tended to focus too much on the Founding and not enough on the later amendments, which he needs to take seriously because they’re part of the Constitution also.” — Akhil Amar (29:57)

Personal Reflections: Justice Scalia as Mentor and Person

(With Rachel Barkow, 31:08–47:17)

What Was Scalia Like as a Boss? (31:46–34:27)

• Barkow:

  • Describes her first impressions as “overwhelmed,” but Scalia proved warm, approachable, funny, and generous with his time.

  • Shares a story of correcting a minor mistake and Scalia reassuring her with humor and kindness (33:19).

  • “If that’s the worst thing you do all year, you’ll be the best law clerk I’ve ever had.” — Rachel Barkow, recalling Scalia (33:45)

Embracing Ideological Diversity in Chambers (34:27–36:11)

• Barkow:
  • Openly Democratic, never felt out of place; Scalia valued intellectual diversity, and his own interpretive methods were clear and consistent.
  • Saw her work as helping execute his vision, not replacing it with her own.

Influence on Writing and Legal Thinking (36:11–39:51)

• Barkow:

  • Learned to become a better writer and thinker; Scalia obsessed over language, word derivations; made legal writing dynamic and fun (36:32–37:22).

  • His dissents and “zingers” were powerful as teaching tools and at their best when focused on the logic rather than personal attacks (37:32–39:51).

  • “He’s showing you exactly the spots and the issues that you need to focus on to decide, okay, which of these perspectives is the one you agree with.” — Rachel Barkow (40:10)

Impact on Students and Legal Culture (39:51–42:01)

• Lithwick:
  • Observes Scalia often claimed he “wrote for the law students,” and Barkow confirms the educational power of his opinions, which are lively and force critical examination.

Scalia’s Surprising Jurisprudence on Criminal Rights (42:01–44:56)

• Barkow:
  • Stresses Scalia’s principled stances on some "liberal" issues (privacy, defendants’ rights) where he went beyond mere coalition-building to intellectual leadership.
  • His commitment to jury trials over judicial fact-finding in sentencing had real-world consequences on federal guidelines—“really changed the landscape in sentencing law” (44:30).

Personal Memory (45:21–46:56)

• Barkow:
  • Shares a moving memory of Scalia at her wedding: despite family and guests’ ideological differences, his warmth won them over. He was “joyous,” “full of life,” and “infectious.”
  • “I do think if he’d had the opportunity to kind of meet everybody who may be judging him right now, he would win you over.” — Rachel Barkow (46:30)

Notable Quotes & Memorable Moments (with Timestamps)

• “It’s the end of an era in a couple of ways, personally and structurally…We may not see his likes again." — Akhil Amar (03:01)
• “Sometimes you have to choose between text…and precedent.” — Akhil Amar (09:53)
• "In Bush vs Gore…the text of the Constitution really didn’t support this intervention.” — Akhil Amar (11:14)
• “It’s a piece of cake to decide it.” — Antonin Scalia (13:34)
• "I’m an originalist. I am a textualist. I am not a nut.” — Antonin Scalia (quoted by Lithwick, 17:02)
• “If that’s the worst thing you do all year, you’ll be the best law clerk I’ve ever had.” — Scalia (recounted by Barkow, 33:45)
• “I do think if he’d had the opportunity to…meet everybody who may be judging him right now, he would win you over.” — Rachel Barkow (46:30)

Important Timestamps

• 00:05 — Introduction and overview of context
• 03:01 — Amar on Scalia’s personality and structural legacy
• 09:29 — Parsing textualism and originalism
• 12:47 — Scalia’s own defense of his method (audio clip)
• 17:02 — “Faint-hearted originalist” and Hugo Black
• 21:05 — Critiques of originalism and adapting to technology
• 26:39 — Amar’s main critique: Scalia’s focus on the Founding
• 31:08 — Rachel Barkow on her clerkship experience
• 36:32 — Scalia as Master Writer and Teacher
• 42:59 — Scalia’s jurisprudence on criminal law and jury rights
• 45:21 — Barkow’s personal memory of Scalia’s warmth

Conclusion

This episode transcends the usual hagiography or vilification of Justice Scalia by grappling with the complexity and contradictions at the heart of his judicial philosophy and personality. Through rigorous discussion with Akhil Reed Amar and heartfelt reflection by Rachel Barkow, listeners gain a nuanced understanding of Scalia’s legacy—his interpretative theories’ strengths and shortcomings, the ways he shaped (and sometimes upended) Supreme Court traditions, and the vivid, human dimensions behind his public persona.