Scalia: Man of the Law (Part I of II)
“Politics aside, we should all die full of years, with 28 grandchildren, in our sleep after quail hunting.”[1] Ross Douthat tweeted that after the late Antonin “Nino” Scalia passed away in February 2016 at seventy-nine. Scalia will be remembered most as a conservative United States Supreme Court Justice, serving the Court for nearly thirty years. But this witty, larger-than-life figure was also a devoted family man, a memorable author, and a committed Roman Catholic. In this two-part article, we’ll first consider a short biography, and then survey his judicial philosophy. In Part II, we’ll explore his faith and reflect on his legacy.
Biography
Scalia was born in Trenton, New Jersey on March 11, 1936. As a child, he wasn’t particularly popular, but he was brilliant. He graduated valedictorian from Xavier High School (1953), summa cum laude from Georgetown University (1957), and magna cum laude from Harvard Law School (1960). While attending Harvard, he met his wife, Maureen McCarthy (m. 1960). They were married for fifty-five years, and had nine children and twenty-eight grandchildren.
Throughout his career, Scalia worked in several different areas. He began his career by working in a law firm (1961-67). He went on to teach as a law professor at the University of Virginia (1967-71) and University of Chicago (1977-82), and as a visiting law professor at Georgetown University (1977, 1980-81) and Stanford University (1980-81).
Scalia also served in government as Office of Telecommunications General Counsel (1971-72), Administrative Conference of the United States Chairman (1972-74), and United States Assistant Attorney General (1974-1977). Finally, he held several judicial offices, including Justice of the United States Court of Appeals for the District of Columbia Circuit (1982-86), and Associate Justice of the Supreme Court of the United States (1986-2016).
He loved his family, the law, hunting, fishing, baseball, opera, the piano, singing, Shakespeare, poker, anchovy pizza, and a good laugh. He lived life, as the expression goes, to its fullest.
Scalia and the Court
Scalia influenced the Court in at least two ways: with his words and judicial philosophy.
Words
Scalia was a superb author and speaker, not just of the Court or jurisprudence, but in general. It’s part of why he’ll be remembered, studied, admired, and critiqued. His words are, in the same instance, bold, humorous, memorable, sarcastic, and sharp.
Many have made these points: “He was one of the great writers in the court’s history.”[2] He was “one of the greatest writers ever to serve on the Supreme Court.”[3] “Everybody knows that Justice Antonin Scalia ranks as one of the best, maybe even the best, writer ever to serve on the Supreme Court.”[4] One author even suggested that he was “the most consequential American author of the last thirty years.”[5] For these reasons, we’ll appeal often to the Justice’s very words in these articles. A second, and significant contribution Scalia made to the Court concerns his judicial philosophy.
Originalism, Textualism, and the “Living” Constitution
Frequently, Scalia gave interviews and speeches. And one of the questions that always arose concerned his judicial philosophies of originalism and textualism. Although these views polarized many, he has nevertheless inspired and encouraged a generation of (often) young, conservative law students, scholars, and lawyers—and time will tell the extent of this legacy.
Originalism holds that judges should interpret the Constitution according to its framers’ intent, and textualism that they should interpret a text by its original, ordinary meaning. These are two expressions of the same basic philosophy. Although Scalia used the term originalism, he articulated it as textualism in his later career.
Scalia held that this hermeneutic was interpretive orthodoxy for most of America’s history. As an analogy, it is similar to a Biblical or literary hermeneutic that believes a text means what it did when it was written, and that it does not change according to the whims of the culture or reader.
Originalism and textualism stand in contrast to the “living constitution” judicial philosophy, which holds that meaning changes over time. Scalia described this approach as “the argument of flexibility,” which holds that because “the Constitution is over 200 years old and societies change,” it “has to change with society, like a living organism, or it will become brittle and break.”[6]
What did Scalia think of this idea? “You would have to be an idiot to believe that. The Constitution is not a living organism; it is a legal document. It says something and doesn’t say other things.”[7] “The Constitution that I interpret and apply,” he said, “is not living but dead, or as I prefer to call it, enduring.”[8] In another speech he gave at the Woodrow Wilson Center, he commented memorably on his originalism:
Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. . . . This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room – “Justice Scalia, when did you first become an originalist?” – as though it is some kind of weird affliction that seizes some people – “When did you first start eating human flesh?”[9]
While Scalia’s own judicial philosophy is not without its challenges—all interpretive philosophies are—it is, to use his words, “the lesser evil,” and preferable to a living constitution hermeneutic.[10]
Scalia’s critics accused him, for his judicial philosophy, of bigotry, homophobia, racism, sexism, and all manner of uncharitable designation.[11] However, Scalia was none of these things. Rather he respected the democratic ethos of American republicanism. He honored the separation of powers between the legislature and the judiciary. He refused to go beyond the law itself. For Scalia, the judge’s task is lawyering, not legislating. So committed was he to this that he, unlike Justice Clarence Thomas, didn’t even believe natural law belongs in the courtroom—the legislature perhaps, but not the courtroom.
If a judgment is bad, it’s because the law is bad. “Garbage in, garbage out,” he would say. But a bad law is the fault and responsibility of the legislature, not the judiciary. It doesn’t give the judge a “naked judicial claim to legislate.”[12] The judge does the best he can with the law he has, and not the law he wishes he had.
If the judgment is properly based on the law available, but seems unfair, Scalia pointed to the democratic process: “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.”[13] And again, “The problem with a living Constitution in a word is that somebody has to decide how it grows and when it is that new rights are—you know—come forth. And that’s an enormous responsibility in a democracy to place upon nine lawyers, or even 30 lawyers.”[14]
For Scalia, that’s just the point: if a group of unelected lawyers hold the keys to the meaning of a text, which can change with time as they see fit, that’s hardly democratic, or even republican for that matter. In fact, “a system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”[15] Sarcasm fully in tow, Scalia asks, “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”[16]
Civil Disagreement
For those tempted to spew ad hominem vitriol towards those with whom they disagree (and for some, this may include Scalia), Scalia offers an instructive example in his friendship with Ruth Bader Ginsburg. Despite their stark differences regarding the law and jurisprudence, they were great friends; their families even vacationed together.
“My best buddy on the court is Ruth Bader Ginsburg, has always been,” Scalia stated in an interview with Piers Morgan on CNN.[17] On 60 Minutes, he explained, also in context of this friendship, “I attack ideas. I don’t attack people. And some very good people have some very bad ideas.”[18]
For her part, Ginsburg commented, “We were best buddies,”[19] “I love him, but sometimes I’d like to strangle him,”[20] and, “How blessed I was to have a friend of such brilliance, high spirits, and quick wit.”[21]
Both Scalia and Ginsburg have much to teach us here. Yes, let’s disagree, but let’s be charitable and kind to one another as we do it, knowing the difference between attacking ideas and attacking people. Let’s not build straw men out of one another, but take one another seriously for what we’re meaning to say. Certainly “do unto others” applies here. And let’s think of our sparring partners, not as our enemies, but as those who will expose our weaker points and sharpen our positions.
In next week’s post, we’ll consider Scalia further, namely his faith and his legacy.
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[1] Ross Douthat, Twitter Post, February 13, 2016, 5:06pm, https://twitter.com/douthatnyt/status/698629400900870145. Matthew J. Franck suggests that Scalia had thirty-six grandchildren in “Antonin Scalia, Persistent Champion of Constitutional Republicanism,” Public Discourse, May 2, 2016, accessed May 2, 2016, http://www.thepublicdiscourse.com/2016/05/16871/?utm_source=The+Witherspoon+Institute&utm_campaign=c01e93c624-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_15ce6af37b-c01e93c624-84171605.
[2] Nina Totenberg, “Justice Antonin Scalia, Known For Biting Dissents, Dies At 79,” February 13, 2016, accessed April 5, 2016, http://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79.
[3] Cameron Findlay; quoted in “Antonin Scalia—A Justice in Full,” February 29, 2016, http://www.nationalreview.com/article/432005/antonin-scalia-justice-full?utm_source=taboola&utm_medium=referral.
[4] William Kelley; quoted in “Antonin Scalia—A Justice in Full.”
[5] Joseph Bottum, “Antonin Scalia, Writer,” The Washington Free Beacon, February 16, 2016, accessed April 5, 2016, http://freebeacon.com/culture/antonin-scalia-writer/.
[6] Antonin Scalia in Melissa McNamara, “Scalia Raps ‘Living Constitution,’” CBS News, February 14, 2006, accessed April 5, 2016, http://www.cbsnews.com/news/scalia-raps-living-constitution/.
[7] Ibid.
[8] Antonin Scalia in Totenberg; italics added.
[9] Antonin Scalia (remarks before Woodrow Wilson Center, Washington, D.C., March 14, 2005); quoted by Ann Corkery, “Antonin Scalia, the Brilliant, Joyful Justice,” RealClear Politics, February 19, 2016, accessed April 5, 2016, http://www.realclearpolitics.com/articles/2016/02/19/antonin_scalia_the_brilliant_joyful_justice.html.
[10] Antonin Scalia, “Originalism: The Lesser Evil” (paper presented at the University of Cincinnati as the William Howard Taft Constitutional Law Lecture, Cincinnati, Ohio, September 16, 1988).
[11] For example, see Sam Fulwell III, “Race and Beyond: The Racially Insensitive Legacy of Justice Antonin Scalia,” Center for American Progress, February 24, 2016, accessed April 5, 2016, https://www.americanprogress.org/issues/race/news/2016/02/24/131690/the-racially-insensitive-legacy-of-justice-antonin-scalia/.
[12] Obergefell v. Hodges, 576 U.S ___ (2015) (Scalia, A., dissenting), at 5.
[13] Antonin Scalia, “The Originalist,” California Lawyer; quoted in Emily Conley, “7 Masterful Quotes That Sum Up Former Supreme Court Justice Antonin Scalia’s Approach to Life and Law,” Alliance Defending Freedom, February 15, 2016, accessed April 5, 2016, https://adflegal.org/detailspages/blog-details/allianceedge/2016/02/15/7-masterful-quotes-that-sum-up-former-supreme-court-justice-antonin-scalia-s-approach-to-life-and-law.
[14] Antonin Scalia in Bruce Allen Murphy, “Justice Antonin Scalia and the ‘Dead’ Constitution,” The New York Times, February 14, 2016, accessed April 5, 2016, http://www.nytimes.com/2016/02/15/opinion/justice-antonin-scalia-and-the-dead-constitution.html?_r=0.
[15] Obergefell v. Hodges, 576 U.S ___ (2015) (Scalia, A., dissenting), at 5.
[16] Wabaunsee County, KS v. Umbehr, 518 U.S. 668 (1996) (Scalia, A., dissenting), at ___.
[17] Antonin Scalia, Interview with Piers Morgan, CNN, July 18, 2012, accessed April 5, 2016, http://transcripts.cnn.com/TRANSCRIPTS/1207/18/pmt.01.html.
[18] Antonin Scalia, Interview with Lesley Stahl, 60 Minutes, April 27, 2008, accessed April 5, 2016, http://www.cbsnews.com/news/justice-scalia-on-the-record/.
[19] Ruth Bader Ginsburg; quoted in Elisha Fieldstadt and Pete Williams, “Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies,’” NBC News, February 14, 2016, accessed April 5, 2016, http://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671.
[20] Ruth Bader Ginsburg; quoted in Ariane de Vogue, “Scalia-Ginsburg Friendship Bridged Opposing Ideologies,” CNN Politics, February 14, 2016, accessed April 5, 2016, http://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/.
[21] Ruth Bader Ginsburg; quoted in “Antonin Scalia: A Justice in Full.”
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