All Intensive Purposes

It's nice to see conservatives acknowledging that Justice Scalia's jurisprudence is, shall we say, results-oriented. Here, Professor Bainbridge:

Scalia ... is not purely an originalist. Instead, Scalia's jurisprudence has elements of originalism and textualism, but also of traditionalism. The latter looks at how the Constitution has been interpreted over time, such that well-established traditions become entrenched. The real problem with Scalia is that he doesn;t seem to have a hierarchy for choosing between the three. As David Zlotnick observes:

Heterarchy, not hierarchy, could be the battle cry of those critics who focus on the interplay of Scalia's methods rather than on the individual components. Led by Jeffrey Rosen, this group alleges that, even if Scalia's methodology is hierarchical in theory, his opinions reflect a more opportunistic picking and choosing of the method that leads to his preferred result. Rosen's contention is that "in case after case, Scalia chooses among mutually inconsistent interpretive principles - textualism, originalism, traditionalism - in order to reach results that he finds politically congenial." For example, Rosen challenges Scalia's claim that the Due Process Clause of the Fourteenth Amendment should be read to refer only to procedural rights. He argues that a historical understanding reveals a "substantial overlap ... between notions of due process of law and notions of equal protection of the law," as well as a "view [of] the due process clause as a mandate that judges should protect certain fundamental economic rights."

A number of scholars have come to similar conclusions in other areas. In his examination of Scalia's takings jurisprudence, William Fisher found that in Lucas v. South Carolina Coastal Council, Scalia devised a precedent-based clear rule for takings without first exploring the Framers' understanding of the Takings Clause. If he had, Fisher contends, he would have discovered that the original understanding of this clause "proscribed only formal expropriations of private property," not the effects of regulations on property value that Scalia's rule encompassed....

Normally, Scalia evades these contradictions by resorting to overly confident textualist assertions or by abdicating his commitment to conduct historical research. Once in a while, however, Scalia comes close to admitting that he does not always follow a strictly hierarchical approach beginning with
text and proceeding to history and clear rules. For example, in Waters v. Churchill, he acceded to a judicially created First Amendment doctrine (a clear rule) but admitted that he had not "inquired into the historical justification" of that rule. Rather than that of a systemic ideologue with a hierarchy of methods, Scalia's constitutional practice better resembles that of a practical handyman who reaches into his workbox to select the tool best suited to accomplish a particular job. The question that remains, however, is how often his political values influence his methodological choices.

There is much to be admired about Scalia. It no longer seems possible, however, to believe that he is developing a coherent conservative jurisprudence. Nor, insofar as results are concerned, that he can be expected to bring back the Constitution from the exile to which Wickard assigned it.

If you could overlook the ascension of Roberts and Alito to the Court, you might even feel sorry for the Constitution-in-exile folks. But neither Zlotnick nor Bainbridge seem willing to quite fess up to what they're both saying: If Scalia is a "handyman" who uses jurisprudential doctrine as a "tool" to "accomplish a particular job" -- a euphemism for "reaching a preferred outcome in a given case" -- surely there is more you can say about the judge than that he is not "developing a coherent consevative jurisprudence." What else do could be affecting his selection of "tools" apart from his political values? This is Antonin Scalia we're talking about here, not Sandra Day O'Connor.

eta: William Saletan also wrote today about Scalia's shifting principles.