Politics & Policy

Justice Scalia: An Appreciation

(Chip Somodevilla/Getty)
Scalia backed up his formidable intellect with a rapier wit.

I was the nerd who put up a picture of Antonin Scalia in his dorm room.

At a time when your normal college kid was — and, frankly, probably should have been — discovering some new garage band from Seattle, I was devouring the Scalia dissents in my poli-sci textbook like they were the latest best-seller.

There’s his celebrated quip that threats to the separation of powers often come “clad, so to speak, in sheep’s clothing. . . . But this wolf comes as a wolf.”

And this vivid image:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.

And then this gem:

Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.

I mean, who writes like that?

Here, in prose worthy of Chesterton, was a theory of judicial review rooted in a simple yet powerful vision of what the Framers accomplished: a Constitution whose restrictions on government power exist to preserve individual liberty. A Constitution that, within clear textual limits, leaves the people broadly free to enact their policy preferences into law. Above all, a Constitution that means now what it meant to the people who wrote it and adopted it, and that doesn’t enact the fashionable pieties of the day.

#share#Justice Scalia’s efforts to usher in a new era of textualism and originalism on the Supreme Court were successful — though only up to a point.

Take the Heller case, where his masterful originalist account of the individual right to keep and bear arms prompted an originalist dissent arguing that the Second Amendment recognizes only a collective right. The battle was fought on Justice Scalia’s terms, and he won. And the independent-counsel statute that prompted his solitary tour de force dissent in Morrison v. Olson was allowed to die an unlamented death after it was turned on a Democratic president.

He always said that he wrote his dissents for law students; he was hoping to shape the next generation of legal minds.

Yet not even his powerful intellect or rapier wit could consistently dissuade his colleagues from divining new constitutional entitlements lurking in, as they put it, the “evolving standards of decency that mark the progress of a maturing society.” Or, even more extravagantly, in “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Still, assembling five-Justice majorities was only part of what Justice Scalia was about. He always said that he wrote his dissents for law students; he was hoping to shape the next generation of legal minds. He was playing the long game.

And so he might have been amused by the time in law school when a friend, a classmate of impeccable progressive credentials, was railing against some decision or another that he thought did violence to the Constitution. “It’s like Scalia says,” he began. Then his face fell and he stopped.

#related#That, I think, is an important part of what Justice Scalia leaves behind. He made textualism and originalism respectable. Conservative jurisprudence could no longer be dismissed as “irritable mental gestures which seek to resemble ideas,” as Trilling put it. Justice Scalia’s adversaries had to take him seriously. They had to take his ideas seriously.

They still do. As I sat down to prepare for class after Justice Scalia’s death last weekend, I realized that my students would be reading two of his dissents in the coming days — one from a decision involving Gitmo detainees (“America is at war with radical Islamists”), the other from a case upholding Obamacare.

How fitting. His work continues.

— Nathan A. Sales is a law professor at Syracuse University. He served in the George W. Bush administration at the Justice Department, where he ran the war room for the confirmation of Chief Justice Roberts.


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