Over at Balkinization, Mark Graber recently had a post entitled “Justice Scalia’s Orwellian Jurisprudence,” which claimed that Scalia paraded as an advocate of judicial restraint, but was actually an activist. Graber also claims that Scalia said he was an originalist, but ignored originalist history.
While Graber’s post has some legitimate criticisms of Scalia, which I will discuss in a moment, it is sadly marred by his claim about Scalia advocating judicial restraint. I am not aware of Scalia claiming to favor judicial restraint. Despite saying that Scalia advocated such restraint, Graber does not provide any specific evidence that Scalia actually defended this position. (If anyone has such evidence, I would be genuinely interested in seeing it.) In his Matter of Interpretation, Scalia says:
Textualism should not be confused with so called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrespute. I am not a strict constructionist, and no ought to be – though better that than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.
Thus, I do not think Scalia advocates judicial restraint. And unless he has some other evidence, I believe Graber should retract his charge.