With the death of Supreme Court Justice Antonin Scalia, America has lost a champion of liberty.
Liberty exists by design and, as Andrew Jackson put it, by eternal vigilance. America’s Founders were clear that liberty requires limits on government, including a particular role for unelected judges. Judges that say what the law is promote liberty; judges that say what they think the law should be undermine it. Justice Scalia was precisely the sort of judge that liberty requires.
President Ronald Reagan first appointed Scalia to the U.S. Court of Appeals for the D.C. Circuit in 1982. At his Judiciary Committee hearing, Scalia said that, if confirmed, the time for him to opine on the wisdom of laws would be “bygone days.” When he again came before the committee four years later as a Supreme Court nominee, Scalia repeated that setting aside personal views is “one of the primary qualifications for a judge.” He described the “good judge” as starting from the law itself and not “where I would like to come out in [a] particular case.”
Justice Scalia stuck doggedly to this ideal of the good judge whose role in our system of government is limited to properly interpreting the law and applying it impartially to decide cases. Scalia’s brilliance and wit were certainly impressive, but they were powerfully connected to this deeply considered and deliberately framed judicial philosophy rooted in the principles of the Constitution.
‘If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.’
— Antonin Scalia
Justice Scalia’s approach requires judges to exercise self-restraint. Judges, he often said, must take the law as they find it and apply it even when they do not like the results. In his own words: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.”
Liberty requires such judicial self-restraint, whether it is en vogue or not. As President Reagan put it when he administered the oath to Justice Scalia in September 1986, America’s Founders intended the judiciary to be independent and strong, but also confined within the boundaries of a written Constitution and laws.
No one believed that principle more deeply, and insisted on implementing it more consistently, than Justice Scalia. His approach to the law was often called “textualism” or “originalism,” an approach that is nothing more than reading what lawmakers wrote in order to determine its plain meaning. It leaves the lawmaking to the lawmaker rather than the judge.
The Senate unanimously confirmed Justice Scalia’s nomination on September 17, 1986, the 199th anniversary of the Constitution’s ratification. That was appropriate, because his approach gives the Constitution its real due, treating it not as empty words on a page but as words that already have meaning and substance. Justice Scalia knew that the Constitution cannot limit government’s power if government actors — including judges — define (and redefine) the Constitution.
Justice Scalia rejected judicial activism — what he called “power-judging” — that treats the Constitution as an anemic and shape-shifting document. Rather than reinterpreting the Constitution in his own image, the good judge conforms his decisions to the Constitution. By insisting that even judges must be the servants rather than the masters of the law, Justice Scalia was simply following the lead of America’s Founders and empowering the American people.
Justice Scalia’s approach to judging not only requires self-restraint from judges, it also demands rigor and accountability from legislators. The good judge takes seriously the language that legislators enact, so that the people can hold accountable the legislators they elect. The famed Senator and Supreme Court orator Daniel Webster once said: “There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” Those who objected to Justice Scalia’s approach wanted judges, rather than the people, to be the masters of the law.
Justice Scalia’s impact has been enormous. Liberal legal commentator Jeffrey Rosen may have put it best in his review of Justice Scalia’s book A Matter of Interpretation:
We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendment has some degree of pertinence to the question of what the Constitution means today.
Justice Scalia brought “the boundaries of respectable constitutional discourse” more in line with the principles of liberty than they had been in generations. For that, our liberty is more secure, and we should be deeply grateful.
— Orrin Hatch is the senior U.S. senator from Utah. He is the longest-serving current member and a former chairman of the Senate Judiciary Committee.