Comment by bradleyjg | Hacker News Reader

Comment by bradleyjg | Hacker News Reader

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Scalia was foremost an advocate of judicial restraint, who believed that the further the Courts stretched interpreting law, the more vulnerable the Courts become to the animosities of the Executive and Legislative branches.

I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.

Rather Scalia was foremost an originalist, it's a school of legal thought that he helped pioneer as a law professor. Today judges and legal scholars needs to grapple with originalism -- agree or disagree you need to speak to it. And with Balkin and Amir's spin on it, to borrow a quote, we are increasingly all originalists now. It's can be hard to believe it now but it wasn't always like this. When Scalia was going to law school no one was poring over the diaries of the founders or the records of the reconstruction congress looking for clues.

Scalia was by no means the sole person responsible for the rise of originalism, nor the purest advocate for it, but he was certainly a major major contributor to it. That's what he will ultimately be remembered for, I think.

A restrained judiciary is easily confused with judicial restraint. Consider mandatory sentencing guidelines, knee jerk reactive handcuffs placed on wrists of Judges vilified for using judicial descretion. I think, but will never know, Scalia recognized how easily the legislative branch could sideline the Courts and he advocated for adoption of the Founder's intent as a means to protect the Courts foremost.

> I don't think that's accurate. There is a position, albeit more in the academy than on the bench, that holds that judges should only in the rarest of circumstances hold that the actions of the other branches are unconstitutional. Scalia can't fairly be described as being an adherent of that school.

My understanding was that Scalia himself explicitly claimed to be following this philosophy. What makes you say otherwise?

The evidence says otherwise. Scalia voted to strike down laws or held executive actions unconstitutional many times over the course of his career. At some point "the rarest of circumstances" has to have some bite. I'm sure he would have argued that he was compelled to do so by the text of the constitution and by the flagrant unconstitutionality of those laws/actions, but I don't think that's a good answer. He may have wished that circumstances would have allowed him to be an avatar of judicial restraint but regardless that's not what happened.

While he was somewhat of an originalist, Scalia was foremost a textualist - much more than an originalist (the latter term better describes Thomas).

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