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Justice Scalia's Originalism and Formalism University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 8-30-2016 Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules Stephanos Bibas University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Fourth Amendment Commons, Judges Commons, Jurisprudence Commons, Law and Politics Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Legal History Commons, Public Law and Legal Theory Commons, Rule of Law Commons, and the Supreme Court of the United States Commons Repository Citation Bibas, Stephanos, "Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules" (2016). Faculty Scholarship at Penn Law. 1664. https://scholarship.law.upenn.edu/faculty_scholarship/1664 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. SPECIAL REPORT | NO. 187 AUGUST 30, 2016 Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules Stephanos Bibas originalists seemed to focus on the Framers’ sub- jective intent, a hazardous inquiry given the paucity ar too many reporters and pundits collapse law of sources and the difficulty of separating sincerity Finto politics, assuming that the left–right divide from propaganda. between Democratic and Republican appointees Rather than plumbing the Framers’ minds, Jus- neatly explains politically liberal versus politically tice Scalia took an objective approach. He asked conservative outcomes at the Supreme Court. The what the words of the text meant at the time they late Justice Antonin Scalia defied such caricatures. were enacted. Thus, his originalism was a species of Justice Scalia was a jurist through and through, textualism.1 In the Scalia era, litigators learned to not a politician, and for the most part practiced put less emphasis on legislative history and more on what he preached. His consistent judicial philoso- the words of the Constitution or statute itself, sup- phy made him the leading exponent of originalism, plemented by dictionary definitions and the like. textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a Rather than plumbing the Framers’ result, supporters and critics alike start with the minds, Justice Scalia asked what the plain meaning of the statutory or constitutional text rather than loose appeals to legislative history words of the text meant at the time or policy. they were enacted. In the Scalia era, Justice Scalia’s approach was perhaps most strik- litigators learned to put less emphasis ing and counterintuitive in criminal law and pro- on legislative history and more on cedure. He was known to confess that as a policy the words of the Constitution or matter, he favored vigorous law enforcement and punishment, but as a jurist, he championed a prin- statute itself. cipled understanding of the rule of law. His approach helped to preserve individual liberty, make the law Objective-meaning originalism, he emphasized, clearer and more consistent and transparent, give respects the democratic decisions of those who citizens better notice, promote democratic account- voted to enact the text. Moreover, it preserves the ability, and check prosecutors’ and judges’ power. separation of powers, a value often overlooked in the Sometimes, his principles led to politically con- criminal law.2 servative results, as with Eighth Amendment limits Originalism safeguards the Framers’ and legis- on punishments; in other areas, such as the Sixth lature’s prerogative to make and amend laws. It also Amendment’s Confrontation and Jury Trial Clauses, protects the right to a jury, the “spinal column of he was criminal defendants’ best friend. Whatever American democracy”—the only right that appears the outcome, Justice Scalia strove to follow his prin- in both the body of the Constitution and the Bill of ciples, and in doing so, he promoted important val- Rights.3 The Bill of Rights is replete with jury pro- ues of the rule of law. tections, including the Fifth Amendment’s Grand Jury Clause, the Sixth Amendment’s guarantee of A Consistent Methodology criminal petit juries, and the Seventh Amendment’s The first thing to note about Justice Scalia’s guarantee of civil petit juries. methodology is that he had one. Many jurists drift The Framers valued juries as essential checks on along, cobbling together a congeries of decisions all three branches of government. Legislatures pass without articulating how one decides. Justice Scalia, overly broad criminal statutes, which may sweep in by contrast, was famed as the leading proponent of morally faultless conduct and sympathetic defen- originalism and formalism. dants, but juries apply them to the facts. Overzeal- Justice Scalia championed the Constitu- ous prosecutors must persuade both a grand and a tion’s original understanding. Before him, many petit jury to charge and convict felony defendants, 5 THE LEGACY OF JUSTICE ANTONIN SCALIA: REMEMBERING A CONSERVATIVE LEGAL TITAN’S IMPACT ON THE LAW and judges can neither override juries’ decisions to rooted hearsay exception” or bore “particularized acquit nor authorize retrial after an acquittal. The guarantees of trustworthiness.”8 Those mushy stan- lay, popular voice of jurors is supposed to be a coun- dards suggested multifactor balancing tests that led terweight to our increasingly professionalized crim- to inconsistent and unpredictable results. inal justice system. That approach had drifted far from the text Most often, Justice Scalia’s originalism went and historical understanding of the Sixth Amend- hand in hand with his formalism. As he famously ment. The text calls for a rule, not a standard: “In all put it, “Long live formalism. It is what makes a gov- criminal prosecutions, the accused shall enjoy the ernment a government of laws and not of men.”4 right…to be confronted with the witnesses against Thus, his famous essay praised “the rule of law as a him….”9 That language says nothing about a mere law of rules.”5 Rules help to constrain judicial discre- presumption, nor about hearsay. Nor does it entrust tion, preserve space for democratic branches, and judges with gauging substantive reliability. Rather, increase predictability. Those benefits, in his view, it requires them to ensure a particular procedure— more than outweigh the costs of over- and underin- “confront[ation] with the witnesses against him”— clusive rules as well as rigidity. Of course laws need so that juries can weigh reliability for themselves. to be updated from time to time, but that is a job for The historical understanding of the confronta- legislatures, not courts. tion guarantee underscored the textual guarantee. Newspaper reporters who saw the Supreme Court The English common-law tradition had long relied of the United States as a political horse race often on adversarial testing and cross-examining live contrasted Justice Scalia with his supposed political witnesses in open court, unlike the introduction of opposite, Justice John Paul Stevens. But in criminal pretrial questioning by inquisitorial systems. In the law and procedure, those two justices agreed sur- notorious English treason trial of Sir Walter Raleigh, prisingly often. Justice Scalia’s true foil was, rather, however, the prosecution had introduced a letter Justice Stephen Breyer. and an unsworn out-of-court statement by Raleigh’s Justice Breyer looked to the future; Justice Sca- alleged accomplice and refused to bring the accusers lia, to the past. Justice Breyer inquired about wise into court for cross-examination. In reaction to this policy and legislative history; Justice Scalia stuck and similar abuses, English and then American law to the text. Justice Breyer trusted technocratic excluded ex parte written evidence and required live experts; Justice Scalia, democracy. Justice Breyer cross-examination to ensure truth. Thus, the Con- prized efficiency, but Justice Scalia subordinat- frontation Clause’s core purpose was to prevent the ed efficiency to liberty.6 And while Justice Brey- use of ex parte written examinations as a substitute er emphasized judicial flexibility, Justice Scalia for live testimony in open court.10 sought to protect juries. As Justice Scalia put it, the For years, several justices including Justice Sca- jury trial “has never been efficient; but it has always lia had written separately, seeking to reinvigorate been free.”7 The two justices’ approaches could not the Confrontation Clause.11 In 2004, in Crawford have been more different. v. Washington, he succeeded. Writing for a seven- Justice majority, Justice Scalia replaced the hearsay Criminal Procedure and the Constitution balancing test with a bright-line rule: A witness is The Confrontation Clause. Justice Scalia’s con- one who gives testimony, not just anything that falls tributions are clearest in his approach to two provi- within the jumbled hearsay rule, and testimony is sions of the Sixth Amendment. For one, he rescued a formal statement to government officers made in the Confrontation Clause from near-oblivion. order to prove a fact.12 Confrontation requires an For decades, courts had conflated and confound- opportunity to question a witness and challenge his ed the constitutional right to confront one’s accus- account face-to-face. ers with the nonconstitutional hearsay doctrines No test is self-defining, and further cases had in the law of evidence that grew up well after the to spell out the contours of these terms. As Justice Founding. In 1980, the Supreme Court had inter- Scalia later wrote for a nearly unanimous Court, a preted the clause as establishing only a presump- domestic-abuse victim’s statement to a police offi- tion in favor of live testimony.
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