A Manipulative Jurisprudence: Unprincipled and Expedient Reasoning

This chapter offers a more detailed analysis of some of Justice Antonin Scalia’s most striking inconsistencies. Its first section addresses Scalia’s use of James Madison as a principal and particularly prestigious originalist source, especially his essays in the Federalist Papers. The chapter examines in particular his inconsistent uses of Madison’s writings in such cases as United States v. Windsor and Morrison v. Olson and in his attitude toward affirmative action and Madison’s idea of the “extended republic” in his decisions on the Eleventh Amendment. The chapter shows that he used Madison when his writings supported Scalia’s own views but ignored him when they contradicted those views. The chapter’s second section examines two of Scalia’s most dubious actions on the Court, joining the five-justice conservative majority in Shelby County v. Holder and writing a deeply flawed opinion for the Court in Boyle v. United Technologies. The chapter argues that the two cases show Scalia at his most inconsistent, contradictory, and willful in serving his ideological and political goals, in the first case voiding a critical provision of the Voting Rights Act of 1965 and in the second expanding federal common law to protect military contractors from tort suits.