Justice Scalia – An American Originalist

As with the loss of many charismatic public leaders, especially those with an outsize, engaging personality, the sudden death of U.S. Supreme Court Justice Antonin Scalia on February 13 leaves a great sense of individual loss in many of us who were not personally acquainted

A brilliant and clear thinker, Judge Scalia expressed himself but memorably. He wrote and spoke without cant or legalese and usually with wit, a style rare among lawyers and jurists. It is arguably a flaw that he wrote for himself and for history, rather than soften his arguments to build a coalition in the case at hand. He sparkled most writing in dissent as, for example, in the cases on the Independent Counsel and Same Sex Marriage.

Scalia’s philosophy, perhaps especially because of the vivid clarity of his expression, aroused ire among some of his opponents. There is little more frustrating than disagreement with a conclusion without being able to fault its reasoning.   He was often dismissive of ideas, but seldom of the people who advanced them. Alas, many who expressed satisfaction at his passing seem unable to make that distinction.

Indeed, many of his most emphatic philosophical opponents numbered among his friends, Justices Ruth Bader Ginsberg and Elana Kagan, among them. It has been frequently said that none of those who hated him actually knew him.

The significance of Scalia’s personality was that he effectively used it to create his legacy, which is not specific decisions but the spread of the judicial philosophy of Originalism – the idea that the Constitution means what its words meant when they were written. He despised the opposite theory, often called the “living Constitution.”

The fundamental doctrine of conservative judicial philosophy had always been stare decisis, the idea that a decision in a new case should follow the law of cases already decided. Legal conservatives believe that certainty in the law – that people be able to know their rights and duties – was as important as its substance. This put conservatives at a disadvantage since that meant when the law changed it would always be in a liberal direction. There was no countervailing theory to change the Constitutional case law in a conservative direction. Until Originalism.

It was his Originalist philosophy that drove Scalia’s decisions, not his personal values. He was no homophobe but he opposed same sex marriage. A devout Catholic, he opposed abortion. He had no Constitutional objection, however, to a state legalizing either. His opposition was to those who, unable to obtain popular support, turn to the courts to force changes in the law, based upon fantastical reading of the Constitution. No interpretation of the Constitution as written, Scalia believed, can compel a state to permit abortion or same sex marriage as a constitutional right.

Scalia’s Originalism was not a matter of convenience. He frequently had to decide cases against his personal instincts and values, often ruling against police on search and seizure cases and voting with the majority in a 5-4 decision permitting flag burning as a First Amendment right.

Before Scalia the legal liberals, in academia, in the organized bar and legal societies and on the bench, were the cool kids, the wave of the exciting future. The legal conservatives seemed boring old stiffs who were against change. Scalia became a rock star on law school campuses, popularizing the doctrine of Originalism to a couple of generations of young lawyers. He was a stalwart of the Federalist Society, an organization of conservative and libertarian lawyers seeking legal reform. Under Scalia’s influence the young conservatives became the rebels, the liberal law professors, the stodgy establishment.

The Court goes on. Justice Scalia the giant cannot be replaced. Scalia, the member of a sharply divided court, must be. Scalia, the Originalist, would have been appalled that even before his body was returned from Texas to Virginia, Senate Majority leader Mitch McConnell announced that “The American people should have a voice in the selection of their next Supreme Court justice.” The Constitution provides that a President, elected by electors, shall appoint judges only “with the advice and consent of the Senate,” chosen by state legislatures for 6 year terms. The Founders were at some pains to keep the voice of the people out of it.

President Obama can and should make a nomination. What he must decide is whether he wants submit a nomination that will provide his party with a campaign issue or he would rather nominate a justice with at least a shot at confirmation. In the case of the latter, the Republican majority in the Senate must decide whether to grasp the olive branch and get a justice they can live with, however poor a substitute for Scalia, or reject the nominee and take the risk that they may be in a worse position in January.

Next: Replacing Scalia





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