Law & the Courts

Antonin Scalia, R.I.P. — Honor His Legacy as a Foe of Judicial Imperialism

Antonin Scalia in 2011 (Jewel Samad/AFP/Getty)

The sudden and untimely death of Justice Antonin Scalia on February 13 is a reminder of two things — first, how much he himself meant to the rule of law and the integrity of our Constitution; and second, how very much is at stake in this year’s presidential election. Justice Scalia was a champion of textualism and originalism in the reading of both statutes and the Constitution, and he was the reliable anchor of the Supreme Court’s originalist wing in an era of deep division and conflict with the “living Constitution” approach to jurisprudence that holds down the other wing of the Court. His passing leaves the contending sides slightly less evenly matched, if anything maximizing the influence of Justice Anthony Kennedy, the notorious swing vote who alternates between constitutional constraint and progressive abandon.

Scalia was already an important figure in conservative legal circles when he was appointed by President Reagan in 1986 — present at the creation of the Federalist Society as a professor at the University of Chicago, and for four years an accomplished judge of the D.C. Circuit Court of Appeals. His nomination to the Supreme Court was confirmed 98–0, an outcome that would have been unlikely if he had not been succeeding William Rehnquist (elevated to chief justice at the time), with Republicans in control of the Senate. (Witness the furor a year later when Reagan nominated Robert Bork to succeed the swing-vote Lewis Powell, with Democrats in the majority.)

Scalia was a devout Catholic, the patriarch of a large family, famously on good terms with his jurisprudential opposites Ruth Bader Ginsburg (they shared a love of opera, among other bonds of friendship) and Elena Kagan (whom he introduced to hunting), and a beloved friend and mentor to countless people in the conservative legal movement. No doubt thousands of lawyers, judges, constitutional scholars, and students count Scalia as an inspiration. To his widow Maureen, his family, and his many friends and admirers, the editors of NR extend our deepest condolences.

With his brilliance, his tenacity, and his devastating wit, Justice Scalia transformed the terms of debate in American constitutional law. Under his commanding intellectual influence, constitutional discourse both on and off the Court took an originalist turn. By far the most eloquent and effective writer of judicial opinions in the past 60 years of Supreme Court history, Scalia was equally ready to advance his views in books, articles, and public appearances — and to spar cheerfully with those who disagreed with him. 

#share#It would take many pages to give an adequate accounting of the contributions Antonin Scalia made to our legal order. Eschewing “legislative history” in the reading of acts of Congress, Scalia brought new standards of interpretive rigor to the art of statutory interpretation. In constitutional law, Scalia championed the structural features of the separation of powers and federalism, led the Court in the recognition of Second Amendment rights, advocated a colorblind reading of equal protection, and reminded his colleagues and his fellow countrymen that property rights (especially as protected by the takings clause) are no less important than the “civil liberties” prized by the Left. 

Justice Scalia was no mere ideologue; some of his most notable opinions had “liberal” results for criminal defendants, and he voted to strike down bans on flag-burning under the First Amendment. But his abiding contribution was in trying to stem the tide of government by judiciary. When puncturing the pretensions of “levels of scrutiny” or skewering the progressive invention of “rights” to abort the unborn or to change the legal definition of marriage, Scalia was the Great Dissenter of our age.

And it is precisely because of Justice Scalia’s three-decade effort to rein in a runaway Supreme Court that we urge Senator Mitch McConnell and his fellow Republicans to stand fast in their resolve to deny President Obama the capture of Scalia’s seat on the Court. For one thing, there is no urgency about filling the vacancy. The Court will conclude oral arguments in the current term by the end of April; no justice arriving after that could participate in a single one of this year’s cases, and confirmation in time to consider even a handful of them would entail an unseemly rush. And the justices can begin the October 2016 term shorthanded without any difficulty, setting the calendar to wait until early 2017 before taking up the most critical cases.

#related#More important, with the Court so evenly divided, with President Obama such a proven devotee of a living Constitution that simultaneously upends settled legal understandings and liberates executive power, and with an election less than nine months away, this is no time for feckless accommodation over the future of the Supreme Court. Judicial imperialism is a cancer in the body politic. It would only metastasize with another Obama appointment. This election season, the Republican candidates for president — especially the eventual nominee — must place the politics of the judiciary squarely before the people, showing them that the only way toward a less political Supreme Court is through a more openly political debate about its future.

If this happens, Antonin Scalia will have done, in death, one last great service for his country, rescuing American voters from a binge of silliness and sobering them up about their great responsibility as a self-governing people in a constitutional republic. Whatever happens next, Justice Scalia has our abiding respect and gratitude. R.I.P.


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