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22 U. Haw. L. Rev. 385 (2000)
The Jurisprudence of Justice Scalia: A Critical Appraisal

handle is hein.journals/uhawlr22 and id is 401 raw text is: The Jurisprudence of Justice Scalia: A Critical Appraisal Erwin Chemerinsky I. INTRODUCTION I am not a fan of Justice Antonin Scalia's work on the United States Supreme Court. When the Justice Scalia fan club is formed, I'm not joining. Since I'm liberal and he's conservative, this is hardly a surprise. But my dislike for Justice Scalia's jurisprudence is much greater than an ideological disagreement. To be blunt, there is a disingenuousness to Justice Scalia's decision-making and a meanness to his judicial rhetoric that I believe are undesirable and inappropriate. In this paper, I want to make three points. First, Justice Scalia's approach to the Religion Clauses is unduly restrictive and would leave little constitu- tional protection for either free exercise or the Establishment Clause. Second, Justice Scalia's jurisprudence is founded on the premise that the Supreme Court should decide cases without Justices making value choices.' I believe that this is impossible and that Justice Scalia, and all the Justices, constantly and inevitably make value choices in deciding constitutional cases. What disturbs me about Justice Scalia's jurisprudence is that by denying that it is making value choices, it pretends that its decisions are a result of a neutral judicial methodology. As a result his value choices are not defended, but rather hidden behind a claim that the results have been discovered not chosen. Justice Scalia's unique contribution to constitutional theory has been his jurisprudence of original meaning.2 His central idea is that the meaning of the Constitution is fixed and that it is discoverable by looking at the text and the practices at the time the Constitution was written. I argue below that this is an undesirable method of constitutional interpretation and one that Justice Scalia uses selectively when it leads to the conservative results he wants, but ignores when it does not generate the outcomes he desires.3 * Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California Law School. I want to thank Alexander Wong for his excellent research assistance. See infra notes 22-29 and accompanying text. 2 See, e.g., ANTONIN SCAuA, AMATrER OFINTERPREATION: FEDERALCOURTS AND THE LAW (1997). 3 See infra notes 37-52 and accompanying text.

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