Antonin Scalia’s Jurisprudence

He was the anchor of the Supreme Court.

A woman once began a conversation with Nino Scalia by saying, “Justice Scalia, we know you love children” — and he cut her off instantly.

“Why would you say that?”

“Well, you have nine of them.”

He corrected her: “That doesn’t mean I love children; it means I love my wife.” And he surely did. At a private gathering of the family, Gene Scalia, the eldest son, spoke the simple truth: that if we count the “achievements” of Antonin Scalia, the children gathered there in that large kitchen — that family woven from the love of Maureen and the steadfastness of Nino, and their resolve, never once showing a tremor of doubt, to get everyone into the station wagon and off to Mass, to raise a Catholic family . . . Well, to rework the old line, “The monuments were all about us.” They were there to be seen in that family of brothers and sisters who really do love one another and, now, gathered in that kitchen, holding together at the moment of their deepest sorrow.

Switch the scene to a day at the Supreme Court years ago: Nino Scalia is bearing down, like an oncoming train, on a lawyer standing before him and desperately trying to hold on. The lawyer finally made a gesture of surrender with a plea: “Justice Scalia, I want to invoke my constitutional right to be presumed innocent.” Presumed innocent. Where was that in the text of the Constitution? Not to be found there. But we knew it was there; it was one of those deep principles that would be there, in a “regime of law,” even if there were no constitution.

And there, in a flash, was the fascinating puzzle that would run through my dear friend’s jurisprudence, and it may explain why he called himself a “faint-hearted originalist.” Originalists want to be governed by the words in the text of the Constitution and how they were understood by the framers who put them there. To appeal outside the text marked the courting of danger; it drew even the suspicion of heresy. And to speak of deeper principles underlying the text — principles that would be there even if the text weren’t there — well, that was to whisper the logic of (gasp!) “natural law.”

But Scalia was a relentless logician, and as he sought the logic behind the text he would persistently find himself reasoning back to those principles that were not in the text. In the famous Heller case on the Second Amendment, he wrote the opinion and made the case for the “right to bear arms” as a right that inhered in persons — individuals, not merely militias. He invoked the primary right of “self-defense.” At a lunch a while later, I remarked that I presumed he meant the right of an innocent person to fend off an unjustified assault. That was indeed what he meant. But those words were not in the Second Amendment. And he described this right as “pre-constitutional” — a right that was there before the Constitution was made. I asked: Were you appealing to some deep principle that did not depend for its validity on being set down in the Constitution? Or were you saying that Blackstone, the great British commentator on the laws, invoked that principle, and that many of the Founders had read him? If it’s the latter, then we were turning jurisprudence into “legislative history”: Were we asking just how many people who worked on drafting the Second Amendment or who voted for it actually had read Blackstone and incorporated his understanding? But that wouldn’t answer the real question here: Is there in fact a principle that truly justifies the access of an innocent person to a lethal weapon if that were necessary to preserve his life?

I don’t think anyone doubted Nino Scalia’s answer to that question, even though it carried him beyond the text of the Constitution. Even more recently, in a case this past spring, Williams-Yulee v. Florida Bar, Scalia was in dissent as the Court upheld restraints on the speech of judicial candidates. As he set the ground for his argument, he made this opening point: “The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.”

#share#We can put aside for the moment the question of whether we really have here the properties of an “axiom” — a necessary truth — for I’ve invested years of writing myself in showing why it is indeed quite legitimate and necessary to recognize assaults in the form of speech and writing and make discriminations based on the content of the speech. And indeed, many of Scalia’s colleagues have disagreed with him on that point. But putting that aside, where in the text of the First Amendment can we find this axiom? Scalia was renowned as a “textualist,” but his powers of intellect and the force of his reasoning carried him well beyond the text — and beyond the “theories” under which he was often celebrated. As I used to tell him, he persistently derided natural law while persistently giving us handsome examples of how a jurisprudence of natural law would be done.

He and I would banter in a good-natured way about these things, but no one spoke my own mind more often, or more surely, than he did, on case after case coming out of the Court. Whether it was his resistance to a constitutional right to abortion or same-sex marriage or racial preferences, he spoke sharply, going to the core of things. I used to say that, when he was in dissent, I would read the dissent first — and then read the opinion of the Court to see if it could meet his argument.

Scalia boasted that he never had a course in logic, but he became the searing, unrelenting logician on the Court.

But he spoke also with an edge, with a cutting humor, that had never been seen before in the pages of the Supreme Court reports. In Romer v. Evans (1996), that key case on “gay rights,” he remarked that his colleagues had brought forth now “a jurisprudence of terminal silliness.” He had a deep affection for David Souter, though Souter’s opinions drove him to the edge of credulity. When the Court was starting to revive the rightly neglected Eleventh Amendment, Justice Souter was drafting a dissent in yet another of these cases, and Nino remarked in print that we were about to be treated to another long, tedious history of the Eleventh Amendment, an account that has “brought down whole forests in the Northwest.”

But at other moments, of course, there were stirring words, as when he remarked, in a case on racial preferences, that “under our Constitution there can be no such thing as either a creditor or a debtor race. In the eyes of government, we are just one race here. It is American” (Adarand v. Pena [1995]).

Scalia boasted that he never had a course in logic, but he became the searing, unrelenting logician on the Court. With a well-placed aim he could expose the vacuity that lay at the heart of a colleague’s position in any case. In the landmark case of Lawrence v. Texas (2003), the Court struck down the Texas law on sodomy, and Justice O’Connor joined Justice Kennedy in denying that the decision entailed any move toward the acceptance of same-sex marriage. O’Connor conceded that one could argue for the good of marriage without casting any moral disapproval on the homosexual life and implying that gays and lesbians were not fit for marriage. Scalia made a nullity of that argument with one telling paragraph:

“Preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest . . . could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

But in looking back at moments of this kind, we can see that Scalia’s art reached its most exquisite level when he illuminated a claim of rights so refined, and so precious, that it virtually extinguished itself. And so the Court was asked to consider a case of putting up tents for the homeless in Lafayette Square, adjoining the White House. The display was offered as a move to dramatize the plight of the homeless. Matters of security involving the White House were to be trumped by an act of “symbolic expression” in putting up tents. But as an act of expression, Scalia pointed out, the act of running a traffic light could be understood as a protest against traffic lights, inhibiting the liberty to move. Let’s put it all together: An act of symbolic expression invokes the protections of speech in the First Amendment, and that interest trumps the needs of “security.” But if a hostile mob started breaking down the campers’ tents, that would also count as an act of symbolic expression. And if those acts of symbolic expression are trumping, then the government is no longer in a position to protect the First Amendment rights of the campers.

Young Deborah Weisman, or her parents, found it insufferable that she should be compelled to sit, in silent respect or acquiescence, while a rabbi offered an invocation at her commencement at a middle school in Providence. As she and her parents saw it, she was being coerced into endorsing religion, even with this rather generic expression of thanks to the God of Christians and Jews. Justice Kennedy switched sides to make the decision come out in her favor. But as Scalia pointed out, she was not compelled to say anything, as in the famous cases of the students who were Jehovah’s Witnesses, compelled to salute the flag and speak the Pledge of Allegiance. Nor was she or her parents faced with legal penalties for failing to listen to the invocation. In contrast, the students in the Jehovah’s Witness cases could be expelled and their parents prosecuted for contributing to the delinquency of minors. The “coercion” in Lee v. Weisman came in simply being asked to sit quietly while others listened to the prayer of invocation. But in the famous flag-salute case, the Court had protected the students, not merely from religion, but from political orthodoxy as well. Justice Jackson had famously said that no one in an official position should be able to impose a political orthodoxy — in this case, the orthodoxy of respecting the flag of our country. Now if we put the cases together, as Scalia did, we had something truly powerful: I’ve winced myself at having to sit through commencements with honorary degrees bestowed on people I regarded as politically repellent. But if I were at a state university, I could now invoke a new right to bar from the platform Al Sharpton or Bernie Sanders lest anyone take my silence as an endorsement of their views. Scalia saw again a right so sublime that it could extinguish itself.

#related#Scalia himself argued only one or two cases before the Supreme Court when he was at the Department of Justice. And he recalled that, one day when he argued, the Court was largely silent, as it usually was; but Byron White was gracious enough, just before the end, to ask Nino a question. In our own day, Paul Clement goes before the Court without any papers in hand, for he knows that when he gets his first sentence out, the barrage of questions, the assault, will begin. Oral arguments have turned into a raging seminar, with the judges arguing against each other as they argue with — and through — the advocates before them. It was Nino, more than anyone else, who brought that style to the Court. It was a measure of his own scrappiness — his love of the argument, of the flash of wit, but all driven by his restless passion to get at the truth of the thing — to find the ground of the soundest judgment.

Right now, some of my friends are preparing to go into oral arguments at the Court this term, on abortion, on the Little Sisters of the Poor, and on other cases; and with Nino no longer there, they seem to have lost their “fighting chance” to prevail. That bleakness will hang over the courtroom in those days soon coming. But worse than that: We will feel, in that courtroom, the loss of his voice, the sense of solidity and sharp wit, engaged so quickly; and yet most of all, we’ll feel the absence of that figure we had come to count on, that senior grownup in the room, helping to anchor it all.