Antonin Scalia, the cheery antithesis of Atticus Finch, was an unlikely radical.
The US Supreme Court justice, who died over the weekend aged 79, was a graduate of Harvard Law School who interrupted his academic career with a five-year stint working for Richard Nixon, the squarest of squares, and later Gerald Ford.
But a radical he was, storming the barricades of the judiciary and the legal establishment with an idea his opponents deemed dangerous, if not fanatic, but which Scalia regarded as a return to an earlier orthodoxy.
In the vulgar rhetoric of US judicial politics, he was a “conservative” but while his private views were undoubtedly reactionary, his legal philosophy was more complex. Scalia was an originalist, a school of thought which sprung up in opposition to the “judicial activism” of the Warren Court. Originalists argued that the Constitution and federal statutes should be interpreted by discerning their “original meaning”, what each provision had meant when it was passed into law.
In that sense, he was a restorative revolutionary, dragging constitutional interpretation back to what he believed was its proper mode before the interference of political ideology and judicial arrogance.
This sometimes led him to conclusions that sat ill-at-ease with his personal politics. Writing for the majority in Kyllo v. United States, he determined that law enforcement could not use thermal imaging to detect marijuana farms in private homes without a warrant. The narcotics trade got another boost in 2012, when he authored the US v. Jones decision declaring the use of GPS to track a suspected drug trafficker an unconstitutional search.
In Brown v. EMA, he struck down a California statute restricting the sale of ultra-violent video games to minors on the grounds they represented protected First Amendment speech. The state could no sooner limit access to Postal 2, he reasoned, than it could keep grisly literature out of children’s hands. “Some of the Grimms’ fairy tales are quite grim, to tell you the truth,” he quipped during oral argument.
Why then did he attract such contempt from the political left and many in the legal profession? To understand, we must appreciate the highly politicised nature of the federal judiciary in the United States. Lord Neuberger and Lady Hale can retire to their chambers of an afternoon and, blessedly, not be serenaded by a shrill chorus of pro-choice and pro-life protestors. Washington DC’s 1 First Street, however, is the rallying point for all sides of every social issue under the sun, from guns and gays to school prayer and the death penalty. The Court’s interventions in hot-button issues over the years — birth, death and gay marriage — mean every seat on the bench counts and appointments are fought over with a righteous rage otherwise reserved for Armageddon.
Scalia sparked a resplendent fury in his enemies — they were no mere opponents — as he giddily throttled one liberal dogma after another. The Constitution, he pointed out, had nothing to say about abortion or same-sex rights and as such those questions were for the people or their elected representatives to answer. Worse, he resisted efforts towards what he saw as “rewriting” the document. The death penalty could not be unconstitutional since the Bill of Rights explicitly references it and affirmative action was surely forbidden by the equal protection clause of the Fourteenth Amendment. In declining to “take sides in the culture war”, he was taking the side that most infuriated his critics: That of the “dead” over the “living” constitution, with its “evolving standards of decency that mark the progress of a maturing society”.
When schoolchildren visited the Court and recited the line taught to them by their teachers, that “the Constitution is a living document”, Scalia would delight in telling them: “It isn’t a living document. It’s dead. Dead, dead, dead.”
Antonin Scalia was born in Trenton, New Jersey in 1936, the only child of Italian immigrants. His father Salvatore was an academic and Scalia excelled at school, graduating top of his class from Xavier High School, a military academy run by the Jesuits (a truly terrifying concept to anyone who has experienced either of those two educational systems). He was in that fine tradition of uppity immigrant offspring who excel with largely invisible effort and in doing so offend the dull progeny of the WASP elite. He took an undergraduate degree in history from Georgetown and his JD from Harvard and began practising law in Cleveland, Ohio before accepting a professorship at the University of Virginia. In 1971, he went to work for the Nixon White House as legal counsel in a number of executive agencies, where his uncommon passion for administrative law came in handy.
A return to academia after the election of Jimmy Carter in 1976 saw Scalia take a post at the University of Chicago law school until 1982, when Ronald Reagan appointed him to the DC Circuit, known in legal circles as the waiting room for the Supreme Court. When Chief Justice Warren Burger retired in 1986, the President nominated Associate Justice William Rehnquist to the position and named Scalia to fill the latter’s seat.
It was an inspired gambit by Reagan, the lightning rod Rehnquist attracting all the heat while Democrat senators were forced to back Scalia or be pilloried by their own base for rejecting the first Italian-American appointee to the Court. The Left had been hoist by its own identity politics petard and Scalia’s would be the last nomination to be conducted as a political process rather than a form of unarmed warfare. He merrily puffed his way through the Senate hearings on a handsome briar pipe, a canny prop to intimate professorial pensiveness, but he was a bulldog straining at the leash. In the end, he was confirmed by the Senate 98 votes to nil. (Two Republican senators, the highly conservative Barry Goldwater and Jake Garn, were absent. When a Justice Department staffer called Scalia to tell him the result, the judge quipped: “You mean we lost Goldwater and Garn?!”)
If the White House feared he would “go bad” like so many previous Republican appointees, Scalia quickly allayed any worries, unloading his originalist philosophy with the rapid fire of a Chicago Typewriter. He dismissed the Court’s death penalty jurisprudence as “a show of hands on the current Justices’ current personal views about penology” (Roper v. Simmons) and, dissenting from his colleagues’ invalidation of a Texas anti-sodomy statute, accused the majority of having “taken sides in the culture war” and “largely signed on to the so-called homosexual agenda” (Lawrence v. Texas). He heaped scorn on “the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis” in Morrison v. Olson and in other dissents lamented the “sheer applesauce” (Zuni Public School District v. Department of Education) and “legalistic argle-bargle” (US v. Windsor) of the majority’s ruling.
Breaking from the majority in landmark abortion case Planned Parenthood v. Casey, in which the Court quietly terminated Roe v. Wade‘s trimester system and invented an “undue burden” test in its place, Scalia vented his contempt for unchecked judicial power: “No government official is ‘tempted’ to place restraints upon his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify’.” His critics mused that Scalia showed no likewise concern about the corrupting influence of executive power, which he defended lustily.
Humour was a frequently deployed weapon in his armoury. In PGA Tour, Inc. v. Martin, which considered whether the Americans with Disabilities Act applied to professional golfing tournaments, Scalia dissented from the majority’s ruling as well-intentioned but not compelled by law. He snarked: “It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power ‘[t]o regulate Commerce with foreign Nations, and among the several States,’ to decide What Is Golf.”
Despite their sharply contrasting views, he enjoyed a personal friendship with Justice Ruth Bader Ginsburg. Their families holidayed together (a picture exists of Scalia and Ginsburg atop an elephant in India) and the two jurists often accompanied each other to the opera. (The odd couple of the federal bench even inspired a comic opera, Scalia/Ginsburg, which premiered last summer.) When right-wingers assailed Barack Obama’s 2010 Supreme Court nominee Elena Kagan’s lack of judicial experience, Scalia made a rare public comment dismissing their concerns. When she eventually joined the Court the two grew close and, to the bewilderment of Kagan’s left-wing boosters, even became hunting buddies.
In one sense, Scalia’s time on the Court was a failure in that it did not wholly turn the tide against evolutionism and purposivism. He was joined by Justice Clarence Thomas in 1989 but subsequent Republican picks — Chief Justice John Roberts and Justice Samuel Alito — were in the Rehnquistian mould of mere textual restraint. That unseemly politicking over his replacement began before the body was even cold underscores the endurance of the politicised judiciary he sought to eradicate. Such are the stakes when the highest court in the land evolves into a super-parliament of nine, legislating from the bench on matters too difficult for politicians to handle. For all his protestations to the contrary, he was not above politics himself, letting slip in hisWabaunsee County v. Umbehr dissent: “The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”
He was severely criticised for his dissent in 2012’s Arizona v. US, which contained an undisguised broadside against the Obama administration.
If he did not manage to kill the living constitution, Scalia had many successes to his name. Almost single-handedly, he restored much of the original meaning of the confrontation clause, in cases such as Melendez-Diaz v. Massachusetts (the right of defendants to cross-examine expert lab analysts) and Crawford v. Washington (hearsay statements only admissible if subject to cross-examination). He authored the majority opinion in DC v. Heller, finding that the Second Amendment guaranteed an individual right to keep and bear arms independent of participation in “a well regulated Militia”.
And his mere presence on the bench forced law schools, those institutions tangentially involved in legal education, to recruit originalists to their faculties. Whether this will produce another Scalia remains to be seen but it means students educated in the new orthodoxy will at least be aware of the old one.
Since his death from a heart attack at a Texan hunting ranch on Saturday night, Scalia’s detractors have sought to discredit him and his judicial philosophy with accusations of prejudice, in particular that of homophobia. Though adhering to the Catholic Church’s teachings on homosexuality (pending any revisions by the eager Pope Francis), Scalia was not a bigot but a democrat and a constitutionalist. His objection was not to homosexuals but to what he asserted was the invention of constitutional rights — to gay marriage, to abortion — without the consent of the governed.
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
Antonin Gregory Scalia was born in New Jersey on March 11, 1936 and died in Texas on February 13, 2016. He is survived by his wife, Maureen, and nine children.