Was Justice Scalia an Originalist?

I think Scalia would consider himself one. But as I understand his theory, "originalism" was more of a third rung in his list of priorities. The higher two rungs were "textualism" and "democratic theory."

And certain things about the way in which courts operated during the time of the American Founding were arguably inconsistent with such. There is huge debate among originalists on the doctrine of natural rights, unenumerated rights, the Declaration of Independence receiving status as "law" for the purpose of constitutional interpretation. Scalia was with the legal positivists in this respect.

One thing American courts did from the time of the American Founding -- even though the dicta in Erie v. Tompkins almost shattered the metaphysical justification for such -- is look to the "brooding omnipresence in the sky" as they decided cases and controversies. State courts deciding common law matters did this more explicitly according to the theory than the Supreme Court has done.

But arguably all courts did this.

Yes the Supreme Court has arguably always exercised a sort of "common law" power of establishing rules of law as they decide cases and controversies and then following those rules under the doctrine of stare decisis. See this article by a notable law professor for more detail. Whether they call it "living constitutionalism" or looking to the "brooding omnipresence in the sky" and then "discovering" the answer, the results are the same.

I think Scalia's response was, for the Supreme Court to do such is illegitimate in the age of "democratic theory." But again, it's not some new practice. Though post-Erie, the legal positivists who think it proper for judges to continue to do this needed new grounds to justify the practice. Hence "living constitution" as opposed to "brooding omnipresence."

But where would Justice Scalia's theory take us?

I think Scalia has gotten a bad rap by his left of center critics when they argue he was a results oriented justice who believed in imposing his personal preferences on the court. Certain biting and sarcastic statements taken out of context from his dicta support such charges. Also Scalia didn't always perfectly live up to his principles. In Boy Scouts v. Dale he supported the "penumbral" reasoning of the case to avoid a "bad" result.

But on abortion, an issue dear to the hearts of doctrinaire socially conservative Roman Catholics (what Scalia was personally) he made it clear if the states want to permit abortion on demand, they could do such. It's state legislatures who should be deciding this. On the issue of a woman's right to have an abortion as a "constitutional right," analogize it to freedom of speech.  Such is explicitly in the text of the Constitution. The right to abortion is not. If it were, presumably Scalia would hold there is a "constitutional right" to have an abortion, as there is with freedom of speech.

One reason why Scalia may not have been perfectly consistent in the way in which he applied his theory is that in the absence of nine Justice Scalia clones on the Court, you have to get other justices to join your opinion (and vice versa). Always demanding ideological purity from one's peers would mean always writing dissenting, concurring or plurality opinions (at least on those hot button politicized cases that grab our attention).

But the ironic results of Scalia's judicial utopia would have American courts look more European. It's ironic because Scalia has taken a position against the citing of non-American law, except of course the British common law. But such would render American courts to look more like the non-British common law European nations. In these "code law," that is non-common law nations (France, Spain, Germany, Italy, etc.) it's clear courts play a subservient role to the legislatures. There is no stare decisis in such systems. They have a democratically enacted text and if the texts aren't clear enough such that courts have to "fill in a gap," such has no precedential value as a "rule of law."

There is a position further seemingly more extreme than Scalia's held by law professor Lino Graglia that argues Marbury v. Madison was the first "activist" court decision. Therefore, the power of judicial review should be taken away from American courts. I'm not sure where Scalia exactly stood on this. A law professor of mine told me (hearsay) that at some regalia, Scalia told the group he would likewise overrule Marbury. On the other hand, he may have been convinced by the scholarship of Philip Hamburger that demonstrates Marbury's originalist bona fides.

But just how "conservative" is Graglia's position? It's the identical position of left of center law professor Jeremy Waldron, who supports hate speech laws. (Canada, Australia and most of Europe have them.) And as noted, it would render America's judicial system into something that looks closer to the current European "civil law" nations.