ELDER PATRIOT – Antonin “Nino” Scalia, appointed to the Supreme Court by Ronald Reagan, was an intellectual giant whose ability to interpret written words in the manner that their authors intended led Elena Kagan to recognize him as “…the justice who has had the most important impact over the years on how we think and talk about law.”
Scalia’s intellectual brilliance in defense of the Constitution and in defining the role of judges at every level of government leaves a legacy that is worthy of review.
Scalia gave definition to two terms that marked his fidelity to the written word and placed the lawmaking in the hands of those elected to do that work according to the Constitution:
Textualism – Justices regularly used legislative history to support their decisions until Scalia dismissed that as nothing more than “looking over the faces of the crowd at a large cocktail party and picking out your friends.”
Originalism – To Scalia this meant concentrating on the Constitution’s meaning to the ordinary citizens at the time of it was adopted. At his confirmation hearing Scalia stated, “The starting point in any case is the text of the document and what it meant to the society that adopted it.” He noted that this guarded “against the passions of the moment that may cause individual liberties to be disregarded.”
He rejected any notion that the Framers designed the Constitution to be a living, breathing document. Instead he saw the cumbersome process of amending the Constitution as proof that the Framers made it deliberately difficult to change.
Scalia’s reliance on textualism and originalism as his guides served to maintain the separation and balance between the branches of government as the Framers had intended.
Scalia defended his judicial restraint only last year when he said, “Don’t paint me as anti-gay or anti-abortion or anything else. All I’m doing on the Supreme Court is opining about who should decide: Is it a matter left to the people (through their elected representatives,) or is it a matter of my responsibility as a justice of the Supreme Court?”
“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.” – Antonin Scalia
Scalia railed against judicial activism and once wrote in a dissenting opinion, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
There were times when his adherence to judicial restraint left him at odds with his personal views of the case before him.
“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” – Antonin Scalia
Scalia saw the position of his detractors as being based in their own biases rather than the law. As an example, the Left despised him because of his steadfast opposition to the Supreme Court’s ruling on abortion. He often commented that the Constitution doesn’t provide a right for a woman to have an abortion but it also does not forbid states from making the procedure legal and accessible. Scalia’s position was a measured one that put the burden of lawmaking in the hands of the various state legislatures where the Framers intended it to reside.
“You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise.” – Antonin Scalia
Even his style of writing served as a lightning rod to his readers.
Legal scholar Erwin Chemerinsky once wrote of Scalia, “No justice in Supreme Court history has consistently written with the sarcasm of Justice Scalia. No doubt this makes his opinions among the most entertaining to read.”
Writer Margaret Talbot considered Scalia the closest thing to a rock star for upcoming conservative law students to look up to saying that among all of the justices “Scalia is most likely to offer the jurisprudential equivalent of smashing a guitar on stage.”
Much in the way that Pope John Paul’s unorthodox style opened the doors to a new generation of young Catholics so too did the great Antonin Scalia open the minds of a new generation of jurists who will be asked to take their place in preserving Americans’ freedoms.
Reagan ended his farewell speech to the American people with these words, “We weren’t just marking time, we made a difference. We made the city stronger – we made the city freer – and we left her in good hands.”
The finest tribute that can be given to Justice Scalia is his place in history as perhaps Ronald Reagan’s greatest gift to America is secure.
May Antonin Gregory Scalia rest in peace. He did all that he could during his lifetime to preserve the great American experiment.