Text and Tradition: Justice Scalia’s Consistent Application of His Original Public Meaning Approach to Separation of Powers

Abstract

In this article, I argue that Scalia consistently and objectively applied his original public meaning approach to preserve separation of powers, ruling both for and against the legislative, executive, and judicial branches when the text and traditional understanding of the Constitution required it. I focus, in particular, on his opinions in Morrison v. Olson (1988), Printz v. United States (1997), Lujan v. Defenders of Wildlife (1992), and Plaut v. Spendthrift Farms (1995), in which he defended executive power and judicial power from congressional encroachments; NLRB v. Noel Canning (2014) and Zivotofsky v. Kerry (2015), in which he defended congressional power from executive overreach; Young v. United States ex rel. Vuitton (1987) and Hein v. Freedom from Religion Foundation (2007), in which he sought to rein in judicial power; and in Talk America v. Bell Telephone Company (2011) and Perez v. Mortgage Bankers Association (2015), in which he sought to reassert judicial power that the Supreme Court in general and he in particular had previously relinquished.