If constitutional government survives in this country, much of the credit will go to one man — Antonin Scalia, who died on February 13th having served for 30 years on the US Supreme Court. Throughout his life Scalia championed three ideas:
The meaning of a written law is determined by its text. (textualism)
That text should be interpreted by attributing to its words and phrases their conventional meaning at the time of enactment. (originalism)
Laws (including the Constitution as the supreme law of the land) apply, not just to ordinary citizens, but to politicians and bureaucrats as well. (the rule of law)
Strange as it may seem to non-lawyers, by the time Scalia was appointed to the Supreme Court in 1986 the vast majority of legal scholars and judges had come to regard all three of these ideas as outdated and naive. Instead they embraced the progressive theory of law. According to that theory, laws in general, and the Constitution in particular, are "living" documents, the meaning of which can and should be manipulated to suit changing conditions and changing ideas of what is desirable. Furthermore, rather than trying to enforce the misguided and inefficient system of checks and balances specified by the Constitution, the courts should defer to a political elite that can, in the absence of judicial impediment, be relied upon to transform society into a rational, well-organized system, and keep it running smoothly.
Thirty years later, the situation is very different. While the progressive point of view still predominates, Scalia’s ideas are now fully endorsed by a growing and increasingly influential minority of law professors and judges. What’s more, even most of Scalia’s opponents now accept that his ideas must be seriously addressed rather than casually dismissed. As several obituary writers have observed, the extent of the change became particularly clear when the Supreme Court upheld the right of individuals to keep and bear arms in District of Columbia v. Heller. The justices who dissented from Scalia’s opinion for the majority did not argue that the Constitution should adapt to modern ideas about self-defense and public order, or attempt to reconstruct the founders broad intentions regarding such matters. Instead, they disputed Scalia’s claims about the original public meaning of the 2nd Amendment by advancing textualist and originalist arguments of their own.
How did one man manage to make such a difference? If I’d been asked that question prior to his death I’d have said it was simply that Scalia’s ideas were sound and he expressed them with clarity and logical rigor, and I’m still sure that those factors played a role. After years of vague and portentous pronouncements (that often seemed designed to obfuscate and gloss over the Court’s progressive agenda), Scalia’s forthright, no-nonsense prose was like a blast of fresh air. Nevertheless, after reading many obituaries and tributes I’m convinced that an equally important factor was his personality, which has been aptly described as "ebullient."
Scalia’s ebullience came through in his writing, which — in addition to being rigorous and clear — was always entertaining, and often very funny. His opinions were read with pleasure, not only within the legal profession but outside it as well. (No other Supreme Court justice in modern times has had his or her writings compiled in a popular anthology.) His ebullience also came through at oral argument, where he used his skill as a showman, not just to discomfit the parties’ attorneys, but also to influence his fellow justices. And it came through in his public persona, which was widely recognized even among those who would never have thought of reading one of his opinions. (No other Supreme Court justice in history has been the subject of both a play and an opera.)
Above all, Scalia’s ebullience came through in his day-to-day interactions with others. He formed many close and lasting friendships, and these often crossed political and ideological lines. Indeed, since his death some of the most touching tributes have come from left-of-center academics and jurists who, no matter how much they disagreed with Scalia on the issues, nevertheless found his lively personality irresistible.
Harvard law professor Cass Sunstein, who headed the White House Office of Information and Regulatory Affairs during President Obama’s first term, described Scalia as, "Witty, warm, funny, and full of life," and — after listing many of his accomplishments and virtues — added, "Most of all, I mourn his loss as a person."
From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the ‘applesauce’ and ‘argle bargle’ — and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. … He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. …
It was my great good fortune to have known him as working colleague and treasured friend.
Almost single-handedly, Antonin Scalia transformed textualism, orginalism, and the rule of law from quaint relics of a bygone era to respectable ideas worthy of serious consideration by legal scholars and judicial decision-makers. For the sake of the Republic, we must do what we can to ensure that these ideas continue to be taken seriously. Sadly, however, now that Scalia is gone we will probably have to do so without an exuberant champion on the Supreme Court.
An unintended consequence of progressive legal theory has been a change in the Senate’s approach to judicial appointments. Traditionally, in the absence of a clear finding of incompetence or wrongdoing the Senate would defer to the President when it came to judicial appointments. That’s what happened when Ronald Reagan nominated Scalia in 1986; he was confirmed by the Senate 98-0. Less than a year later, however, the Senate Democrats chose to break with this tradition. Because they regarded him as too conservative, they used every means at their disposal (including releasing his private movie rental records!) to keep Robert Bork off the Court. They were equally ruthless and equally creative in opposing the nominations of Douglas Ginsburg, Clarence Thomas, and Samuel Alito, and they established a new tradition of vigorously opposing even well qualified judicial nominees who are known to harbor the wrong political or philosophical views. The result has been to exclude all but the most reticent and anodyne judicial nominees from serious consideration.
Now that a lame-duck Democratic president must win the consent of a Republican Senate in order to appoint a replacement for Justice Scalia, the Democrats claim to be having second thoughts about their break with tradition, but there’s no going back. As long as the Constitution means whatever a majority of Supreme Court justices want it to mean, keeping the opposition’s preferred candidates off the Court will remain a high priority.
Regardless of which party controls which branch of government in the years to come, it’s hard to see how anyone as delightfully ebullient as Antonin Scalia can ever again be appointed to the Supreme Court. The legal world is going to be a lot less interesting and a lot less fun! R.I.P.
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