The Legacy of Justice Antonin Scalia (1936-2016)

Justice Scalia & Bryan Garner Book Talk and Signing
Justice Scalia & Bryan Garner Book Talk and Signing

The death of US Supreme Court Justice Antonin Scalia came as a surprise this past weekend; he had not been reported to be ill, and his boundless energy made him seem rather timeless, despite the fact that he has been on the Court for fully thirty years. He was seventy-nine years old.

Justice Scalia is probably best known for the quality of his dissenting opinions, which tended to be nasty, brutish and short. He could be strident, caustic, demeaning and bullying, and yet there was often the sense that there was a method to his apparent madness. Scalia aspired to, and perhaps even modeled himself upon, that great practitioner of the Supreme Court dissent, Justice John Marshall Harlan (1833-1911). It was Harlan's masterful dissent in the 1896 case, Plessy v Ferguson [163 U.S. 537], that provided the rationale for the landmark anti-segregation ruling of Brown v Board of Education [347 U.S. 483 (1954)]. Harlan's grandson, John Marshall Harlan II, also served as a Supreme Court Justice immediately thereafter, from 1955 to 1971, when he retired and was replaced by William Rehnquist. And William Rehnquist was the first Chief Justice for whom Justice Scalia served.

These details loomed large in Antonin Scalia's sense of the Court's traditions, both the tradition of legal reasoning and the tradition of judicial personality. He possessed a magisterial, and therefore a profoundly Catholic, sense of the law. I will return to that point.

Justice Scalia was the proud possessor of a rigorously textual sense of legal reasoning and a decidedly oversized judicial personality. He was known, by friend and foe alike, as the promoter of a novel approach to judicial decision-making known as originalism. He insisted that Supreme Court decisions should be constrained by the plain meaning of texts and the original meaning of constitutional terminology. He went so far as to claim that there was a "science" of reading, which sounds like nothing quite so much as the German Professor of Philology pouring over his desiccated manuscripts. There was something profoundly philological in Justice Scalia's reasoning and something professorial in his writing. He could be as nasty and as cutting as an Oxford don.

There was something profoundly biblical about Scalia's attachment to the US Constitution, which may be a sign of how Protestant-ly many Roman Catholics in America think and how Protestant-ly they have been trained. Traditionally, they have been Protestants who have reasoned as textual fundamentalists or literalists, whereas Roman Catholics have seen the Bible as one part of a magisterial and ancient historical tradition.

The problems with Scalia's conception of the Constitution's "original intent" and its "clear meaning" were obvious, and they were legion. It was not simply the apparent constitutional fundamentalism that caused wonder and dismay; it was the apparent refusal of history, and the stubborn refusal to admit moral progress in a society that has evolved and continues to do so.

Many of the cultural attitudes enshrined in the Bill of Rights that were ratified in 1791 are not our attitudes today: women could not vote; children had no rights to speak of; and most persons of African descent were enslaved, counting as three-fifths of one person for the purposes of assigning congressional representatives to the mainly southern states.

Justice Scalia was well aware of these problems and for this very reason, he referred to his conception of originalism as "the lesser evil," not a positive interpretive good. In an important and overlooked essay which he published just three years after coming to the US Supreme Court, he said as much in "Originalism: The Lesser Evil" [University of Cincinnati Law Review 57.3 (1989): 849-865]. (Eight years later, he generated further academic discussion of the issue in a less nuanced essay for the edited volume, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997)).

Justice Scalia freely admitted to the fact of shifting cultural attitudes, many of which were signs of social and cultural advancement. While public flogging was an acceptable punishment in 1791, he admitted, he would not be willing to support such punitive measures today. But that, he smiled coyly, is not an issue which is ever likely to come before the US Supreme Court. It has already been adjudicated in the broader society. Many of us are not so sanguine about the stability of such matters of moral taste, which is precisely what makes any kind of fundamentalism, biblical or constitutional, worrisome. Moral values are fragile things, as current controversies concerning immigrant rights, torture and the like make clear.

It is precisely the recent argument about torture in this country that points to the power and the appeal of Scalia's position, however. The strongest argument against torture is not the utilitarian argument that it does not work, or that it provides bad intelligence; it is the absolutist argument enshrined in the Geneva Convention concerning inalienable human rights, the sacred value of personhood and the unarguable criminality of intending grotesque suffering and harm. Even warfare must have its rules.

The virtues of Justice Scalia's method were apparent in an important majority decision he wrote in 2008 in District of Columba v Heller [554 U.S. 570]. The case involved a Washington, DC statute that forbade the presence of handguns in private homes. As was his wont, Justice Scalia went first to the US Constitution, specifically to the Second Amendment:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Then he went to the books (and Webster's Dictionary), parsing every shade and nuance of meaning as to what "keeping and bearing arms" may have meant in 1791. The lion's share of the historical philology in which Scalia engaged concentrated on the term 'arms', and that will likely be the primary means of moving forward with gun control legislation. Justice Scalia freely admitted that the US government possesses modern weapons which do not qualify as "arms" in the 1791 sense, and these weapons may indeed be regulated; he thus subtly pointed a way forward through which gun control might yet be arguable.

But the Washington, DC statute was declared unconstitutional, and even so progressive a constitutional lawyer as Harvard's Laurence Tribe was convinced by the reasoning. [For more on this, see Laurence Tribe and Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (New York, NY: Henry Holt and Company, LLC, 2014), 163-168]. The rigors and the discipline of Scalia's approach were unique; few other majority decisions read the way his did.

But like John Marshall Harlan, it was in dissent that Justice Scalia wrote for the ages. He often intended to plant arguments in the record which could then be utilized later in overturning decisions with which he disagreed. His most striking success came in the famous "Citizens United" case [Citizens United v FEC 558 U.S. 310], whose overturning of governmental regulation of campaign finance contributed to the relatively unregulated, and increasingly anonymous, campaign financing we see today.

(No Justice Scalia, no Bernie Sanders presidential campaign).

I would like to look at what will be remembered as a very typical dissenting opinion in some ways, yet one which may also stand as a sort of credo to Justice Scalia's career. I am speaking of his cantankerous dissent in Obergefell v Hodges, the landmark same-sex marriage ruling issued last summer. In eight impassioned pages, Justice Scalia sounds many of the notes we should expect, but he also offered several more oblique comments that warrant a wider hearing.

It will come as no surprise that he opposed this ruling--vehemently so: "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases" (Scalia, 4).

It will come as no surprise that he insulted the rhetoric and the reasoning of the other side: "the opinion's showy profundities are often profoundly incoherent" (Scalia, 7-8).

And still more: "If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began [he quotes the first sentence of Justice Kennedy's decision], I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie" (Scalia 7-8n22).

But he announced a subtly different reason for objecting here. In short, Justice Scalia distinguished what is rhetorically permissible in a dissenting opinion from what is permissible in a majority opinion that will serve to define the law of the land. I am not sure that this distinction will hold, given the distinctive legal work he wishes his own dissents to do, but it is the case that Scalia's rhetoric in the gun control decision and Kennedy's rhetoric here are worlds apart.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. (Scalia, 7)

In other words, the rhetorical high-jinks in which Scalia engages here are all right, but Kennedy's prose should be held to a higher standard.

It is the nature of that standard that became a surprising topic of concern in this boisterous and wide-ranging dissent. It is worth recalling that the handwritten copy of the Second Amendment to the US Constitution capitalized several salient words: Militia, State and Arms. All three of these terms came under close scrutiny in Scalia's analysis. One thing that may warrant further consideration is Justice Scalia's use of capitalization in his most memorable dissents.

After indicating that the question of what kinds of consenting adult couples marry is of little personal concern to him, Justice Scalia offers the following:

It is of overwhelming importance to me, however, who it is that rules me. Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court. (Scalia 2)

The religious echo is overwhelming here. This secular Court has, through what he refers to as "a judicial Putsch" (Scalia 6), has usurped the power of the Ruler of all Americans (God? the People? It is not clear).

And there is more:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly, then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises one quarter of Americans), or even a Protestant of any denomination. (Scalia 5-6, notes omitted)

Justice Scalia, a practicing Roman Catholic of Italian descent, has here fleshed out the religious complexity of the case, the decision and the manner in which it was decided. In the course of a career which spanned three decades, Antonin Scalia witnessed the US Supreme Court become a profoundly Catholic Court. Six of the justices prior to his death were Catholic; all four dissenters in Obergefell were Catholic.

It would not be difficult to demonstrate that the manner in which these justices imagine certain issues before them--such as marriage, contraception, sexuality, birth and death--are imagined in subtly Catholic terms. Justice Scalia here voices an admirable word of caution, encouraging the justices to be wary of their in-built religious biases.

It is one thing to call for such a thing, quite another to succeed at it, of course.

That complexity might serve us well as a way to think about Justice Scalia's version of originalism and its complicated relationship to religion. He was a lifelong Catholic who reasoned like a Bible-based Protestant. He possessed a lofty sense of tradition, but limited patience for historical and cultural change. He was deeply patriotic, which may be why he capitalized both Ruler and State. He was a gun-owner, hunted religiously, and died doing what he loved.

And his rhetoric was self-consciously incendiary... which will ensure both that the confirmation hearings concerning his replacement will require substantive discussion of judicial methods, and that radicals like Senator Ted Cruz will deny the sitting President of the United States the right to name his replacement.

The Justice has gone to his ancestors, and we are left to comprehend the legacy of his conception of justice.