Balkinization: Justice Scalia's Orwellian Jurisprudence

Balkinization: Justice Scalia's Orwellian Jurisprudence
by Mark Graber // U Maryland School of Law

by Mark Graber
Antonin Scalia was the most Orwellian jurist in American history. He was one of the most important members of the Supreme Court in American history, but not for any reason he identified. Scalia claimed to champion judicial restraint, originalism and the separation of law and politics. In fact, he was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.

Scalia's professed adherence to judicial restraint masked a remarkably broad judicial activism. As Thomas Keck documents in THE MOST ACTIVISTSUPREME COURT IN HISTORY (see also Eric Segall’s fine piece in the Wake Forest Law Review), Scalia was among the least restrained justices who ever sat on the federal bench. He voted to declare unconstitutional land-use regulations, environmental regulations, campaign finance regulations, restrictions on speech outside abortion clinics, hate speech regulations, laws limiting state funding to religious organizations, affirmative action policies, majority-minority districts, crucial provisions of the Voting Rights Act of 1965, crucial provisions of the Affordable Care Act of 2010 and many other federal and state enactments. Scalia insisted that the federal government could rarely permit citizens to sue states in federal or state courts or require state officials to implement federal laws. 

Bush v. Gore probably belongs in a class of its own as an instance of judicial activism. Scalia’s last major opinion on the Supreme Court urged the justices to declare unconstitutional local bans on semi-automatic weapons.
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