“Once again, we see that Scalia’s originalism is a charade"

So says Professor Adam Winkler here.  I agree with Professor Winkler.  I particularly enjoyed Scalia's Ricci concurrence intimating that disparate impact theory might violate the Equal Protection Clause. Good times.

Comments

[anon]

Accordign to the article to which you link, in his new book, Scalia questions Wickard. This "fact" is used by some to berate him, because he cited Wickard in Raich.
What has this to do with "originalism"?
Wickard reasoned that "home-consumed wheat would have a substantial influence on price and market conditions [because] home-grown wheat in this sense competes with wheat in commerce." In other words, by consuming home grown wheat, Wickard did not go out to buy wheat for his chickens, etc.
Compare this with prohibiting doctors from treating themselves, because if they do, they won't consume "health care" in the "market" for "health insurance" Commerce?
(Note the basic logic fail of the whole commerce clause argument, as the proponents of "health care reform" confuse an insurance market with the market for "health care.")
What does Scalia's "orginalism" have to do with Scalia's rethinking Wickard?
And, more importantly, what bearing should Wickard have on the sort of risible notion that Congress can compel two private parties unwillingly to enter into a "contract" to do so on terms dictated by law?
Tax to pay for Medicare for all? Sure. Different issue. All this has nothing to do with Scalia and nothing to do with his "originalism" it seems to me ...
The drafters of the Commerce Clause would have been sickened (pun intended) if they heard the arguments advanced in support of the PPACA. But, I didn't hear Scalia say that.
Perhaps he will. But I doubt it.

[Orin Kerr]

I'm not sure I follow. The linked article accuses Scalia of both adhering to Wickard (in Raich) and saying it was wrongly decided (in his book). But there is nothing inconsistent about those two views: One can say both that a case was wrongly decided as an original matter and that it should be respected as a matter of stare decisis, as they are two very different questions. To be sure, I agree that Justice Scalia's originalism is inconsistently applied, and when it is applied, it can be applied in quirky ways. But I would think one needs more than that to call Scalia's entire originalist enterprise a "charade."

[Brando Simeo Starkey]

"I'm not sure I follow. The linked article accuses Scalia of both adhering to Wickard (in Raich) and saying it was wrongly decided (in his book). But there is nothing inconsistent about those two views: One can say both that a case was wrongly decided as an original matter and that it should be respected as a matter of stare decisis, as they are two very different questions."

I believe the argument is that Scalia had no qualms with following Wickard in Raich. But, when it became clear that Wickard pointed to upholding the ACA, Scalia suddenly believed that Wickard was decided wrongly and must not be followed any longer. This is likely what Winkler meant when he said, “[Scalia] respects precedents when they fit his conservative ideology and disregards them when they don’t."

[Orin Kerr]

Brando, if that's the argument, it sure seems like a weak one. First, the ACA case hasn't been decided yet. Second, it is entirely unexceptional for a Justice to say that a case should be generally applied but not extended, or applied but not given the broadest reading. I realize Justice Scalia is an unapologetic conservative, and as such he is subject to much more (and more intense) criticism than other Justices among academics for any hint of a perceived inconsistency, but this seems like criticism without much basis.

[Brando Simeo Starkey]

Orin,

Those claiming that Scalia's originalism is a charade cite to much more than this one isolated instance. This is just another piece of evidence. Sure, he might be able to explain this one case away, but not the entirety of his duplicity. It seems as though you're reacting to an argument--that his one case proves Scalia's inconsistency--that no one is making.

[anon]

So, is Brando's argument (that he claims Orin is missing) that we shouldn't take into account the intent of the drafters of a Constitution if we cannot give that intent determinative effect?
Or, is that if we cannot ALWAYS take that intent into account, then we should NEVER consider that intent?
Or, is it that we should try to discredit Scalia no matter what the merit of our observations?
Raich was almost directly controlled by Wickard. The choice was to overrule Wickard (no principled way to distinguish it) or uphold the Controlled Substances Act in Raich. Scalia chose the latter.
Again, as I noted above, what does this have to do with the mandate in the ACA?
Brando lifted one isolated quote from a long article and used it as a headline. But the quote wasn't supported by the body of the article.

[Brando Simeo Starkey]

Anon,

Your questions don't make much sense to me. If you're of the opinion that Scalia does not betray his methodology, that's fine and I don't find a back in forth debate about it all that interesting. But if you're going to defend Scalia's fidelity to his brand of originalism, you should at least correctly describe it. Scalia doesn't believe in original intent. That's a variant of originalism perhaps most associated with Raoul Berger and his work Government by Judiciary. There's not too many original intent folks around any longer but perhaps there are some. Scalia supposedly searches for original public meaning. From his book A Matter of Interpretation:

"Government by unexpressed intent is . . . tyrannical. It is the law that governs, not the intent of the lawgiver . . . . Men may intend what they will; but it is only the laws that they enact which bind us."

"What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."

[Orin Kerr]

Brando,

Where have you or Adam made the case that Scalia's originalism is a charade? There is lots of basis for saying that Scalia has been inconsistent in his approach, but I believe a "charade" is an intentionally deceptive act or premise: If you think Scalia's originalism is a charade, that would seem to be an argument that Scalia is not just inconsistent, but is actually engaging in some sort of intentional fraud. If you could point me to where you or Adam have made that argument, I would appreciate it.

[Brando Simeo Starkey]

Orin, if you're asking me if I or Winkler have written a piece fleshing out the argument that Scalia's originalism is a charade, for me the answer is no. I'm not sure about Winkler (I don't even know him). In my original post, I never said that I "made the case that Scalia's originalism is a charade." I just said I believed it to be true.

[anon]

Brando: Your point is well taken. I should have been more precise in my characterization of Scalia's brand of "originalism" ... for the sake of argument, I'll concede your description of it (though, I don't think the difference is as dramatic as you might think it is).
That said, however, how does your point bear on the question I presented, i.e., whether deciding that Raich was controlled (pun intended) by Wickard had any preclusive effect on later considering whether Wickard was correctly decided, and, more broadly, whether questioning the reasoning of Wickard now has any bearing on Scalia's view of "originalism" ...
It seems to me that the blows against Scalia in your post and in the quote you lifted from the linked article (Scalia's views about "orginalism" are a "charade" for unprincipled decision-making) are unsupported and miss the mark by a wide margin.