Justice Antonin Scalia, one of the foremost legal minds and writers in a generation, was found dead on Saturday following a day of hunting–one of his favorite hobbies–at a ranch in West Texas.
During his nearly 30 years on the court, Scalia developed a reputation for his sharp tongue and rapier wit, both of which he was more than happy to deploy against his adversaries. Foremost among that class were those, including justices, who attempted to use legislative history in crafting their opinions.
Scalia’s jurisprudential approach was built upon the belief that judges should apply the law, not make the law, a power that the Constitution vests solely in the people, exercised through their elected representatives. To do that, Scalia believed, judges should limit themselves to gathering meaning from the actual words of the law. Although that may seem self-evident to most, not all judges have held to that belief.
Prior to Scalia there was tremendous growth in judicial power, in no small part because justices found themselves increasingly willing to “interpret” the law based on extratextual considerations. But by attempting to discern “intent” or “purpose,” which took the form of looking at sources like committee reports, these judges often became another, un-elected legislating body. Scalia had no patience for such an unambiguous powergrab. As Scalia said in one scathing dissent, “We are a Government of laws, not of committee reports.”
Terry Eastland writing for the Weekly Standard, delves further into Scalia’s legacy:
Scalia’s tenure on the Court may be understood as an exercise in standing athwart history yelling stop–athwart the decades-long succession of cases by which the judicial power was transformed and the justices became lawgivers. During his confirmation hearing in 1986, Scalia told the Senate Judiciary Committee, “My only agenda is to be a good judge.” It is clear in retrospect–if it was not at the time–that “a good judge,” to his mind, was not the sort that had often preceded him to the High Court.
Scalia’s view of what a good judge is starts with the fact that ours is a constitutional democracy. We are a people (Scalia would say) who have chosen to govern ourselves through a written Constitution to which we have not assigned every authority, as we have left some to the states. (Federalism is what we call this dual sovereignty.) We have taken the legislative, executive, and judicial powers, and vested them in, respectively, Congress, the president, and the judiciary. And while Congress and the president share in the exercise of some powers–for example, the president and the Senate share the power to appoint (but not to nominate) judges–the judiciary does not. It exercises only the judicial power. And, in cases of law, for Scalia as for the Framers, the judicial power is the power to interpret the law, not to make it.
His adherence to textualism and originalism, which seeks the original meaning of the text by looking at how the Constitution was understood at the time of its passage, was often misconstrued and misunderstood as a political agenda.
Take for instance, his controversial legal opinion on abortion. He vociferously argued that the Constitution does not provide a right for a woman to have an abortion, but, he argued just as vehemently, it does not prevent states from making the procedure legal and accessible.
“Hubris is defines as o’erweening pride; and pride, we know, goeth before a fall,” he wrote. “ . . . With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court – we move one step closer to being reminded of our impotence.”
His detractors often liked to argue that Scalia’s adherence to textualism and originalism aligned with his personal beliefs and political orientation, but it wasn’t always so. Take, for instance, his vote in the case of Texas v. Johnson, in which the court held that flag burning was protected under the First Amendment.
“If it was up to me, if I were king,” he said, with his typical rhetorical flair. “I would take scruffy, bearded, sandal-wearing idiots who burn the flag, and I would put them in jail.”
But to paint Scalia only as an impetuous, sarcastic jurist is to reduce him to a caricature. Robert Barnes, writing for the Washington Post, gives a glimpse into the lovable side of Scalia, the man:
In less-partisan times, he was a fixture at Georgetown parties; he loved opera and led carol-singing at the court’s annual Christmas parties. Every year when Boston University law professor Jay Wexler compiled the number of times the notation “laughter” appeared in transcripts of the court’s oral arguments, Justice Scalia was the leading instigator.
Nothing illustrated the dynamic so well as his close friendship with Justice Ruth Bader Ginsburg, with whom he was in frequent disagreement. The two served together on the D.C. Circuit and respected each other’s intellect. Scalia and his wife, and Ginsburg and her husband, Martin, celebrated most New Year’s Eves together.
Ginsburg said no one made her laugh as much as Justice Scalia did. “I love him. But sometimes I’d like to strangle him,” she once said.
Begrudging respect is a consistent theme amongst Scalia’s critics. They don’t ascribe to his belief in textualism. They don’t always appreciate his acerbic tone. But they don’t underestimate his intelligence or effectiveness.
As Vice President Joe Biden said during his time on the Judiciary Committee, his vote to confirm Scalia (the vote was unanimous) was the one he most regretted – “because he was so effective.”
And indeed he was.
Photo credit: Stephen Masker