Even in his very first years on the US Supreme Court, Justice Antonin Scalia already was making a profound impression on the Court, on Washington, and on American life. I matriculated at Georgetown Law shortly after Scalia joined the Court, and throughout the course of my legal studies, he often was the talk of both the town and the law school.
He quickly became something of a judicial folk hero to students who favored judicial restraint, a method of judicial decision-making marked by a justice’s broad deference to the decisions of the people and their elected representatives, and by a decided reluctance to overturn state and federal laws. By the same token, he just as quickly became the bête noire of students favoring an activist Court, that is, a Court more willing to find new rights in the Constitution and to use them as a basis for invalidating state and federal laws.
At Georgetown, as at nearly all law schools, most of the students and virtually the entire faculty leaned progressive, and only a small minority of students favored Scalia’s type of judicial restraint. Scalia’s specific method of adjudication was called originalism, and this method is perhaps his greatest legacy. An originalist is one who reads the Constitution according to the mind of its Framers, or the original intent of the document. (Note, however, that not all proponents of judicial restraint are originalists.)
One of my most vivid memories of Scalia’s influence on legal discourse came in a course on legislation during my final year at Georgetown. The professor was a Republican, but was more liberal than most Democrats. (He eventually would become a leading advocate for same-sex marriage.) Despite his liberal political leanings, this professor had a great deal of admiration for Scalia. He did not agree with the justice’s originalist method, nor—as far as I can recall—with most of his decisions. Nevertheless, he considered Scalia’s legal mind to be in a class by itself on the High Court.
In fact, although most of the 100 or so students in the course were progressive, as he himself was, this professor took real delight in shocking them by pronouncing Scalia to be one of the two most brilliant Supreme Court nominees in the preceding half century. Some students thought he was joking, but he assured them that he was not, and he asserted that, for a fair-minded person, there really was no doubt about Scalia’s dazzling ability. (My progressive colleagues were even more shocked to learn that, in the same professor’s estimation, the other most brilliant nominee besides Scalia was Robert Bork!)
In the ensuing years, the evidence of Scalia’s brilliance—and the significance of his tenure on the Court—mounted ever higher. His colleague, Justice Elena Kagan, although an ideological adversary, released a statement upon his death saying that Scalia will “go down in history as one of the most transformational Supreme Court Justices of our nation.” Along the same lines, his friend and colleague (and, like Kagan, his intellectual sparring partner), Justice Ruth Bader Ginsburg released her own statement: “He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.”
This lavish praise from committed intellectual opponents calls to mind no one so much as G.K. Chesterton. Like Scalia and Ginsburg, Chesterton and George Bernard Shaw seemingly disagreed about everything. And yet, Shaw’s praise of Chesterton upon his death was strikingly similar to Ginsburg’s for Scalia: “He was a man of colossal genius.”
As a law student, I had the privilege of meeting Justice Scalia once. The Georgetown Federalist Society had secured an audience with Scalia at the US Supreme Court, and I was a member of the Society and one of 20 law students to attend. After a morning session of oral argument, Justice Scalia took 30 or 40 minutes to meet with us and to answer our questions. Just as we admired him, he told us which justices he most admired when he had been a law student (if I recall correctly, he said Robert Jackson, Felix Frankfurter, and John Marshall Harlan).
What was most memorable was Scalia’s reflection on the condition of Federalist Society members in US law schools. He was well aware that students espousing judicial restraint and originalism were only a small minority, and in moving terms, he praised organizations like the Society. He said that, just as soldiers draw courage from being among other soldiers, so do like-minded lawyers and law students draw moral courage from gathering together, exchanging ideas, and encouraging one another.
This is another aspect of Scalia’s legacy. Early on, he recognized the need for an alternative to the dominant legal culture of the elite law schools and the American Bar Association. The Federalist Society has attempted to meet this need, and when he was a professor at the University of Chicago, Scalia was instrumental in founding the Society’s chapter there. He also remained a regular speaker at Federalist Society events.
Scalia was famous for issuing blistering dissenting opinions that some observers found to be excessively critical of his colleagues or their reasoning. He once wrote that Justice Sandra Day O’Connor’s analysis in an abortion case “cannot be taken seriously.” At the same time, however, he developed warm friendships on the Court with Justices Kagan, Ginsburg, and Stephen Breyer, who very often were his ideological foes.
In this capacity for friendship, again the comparison with Chesterton comes to mind. Both he and Scalia were brilliant men, larger-than-life figures, public Catholic intellectuals, vigorous debaters, and possessors of marvelous senses of humor. In addition, both had a remarkable ability, not just to earn the respect and admiration of their intellectual opponents, but even to cultivate their friendship—in Scalia’s case, that of his Court colleagues, and in Chesterton’s, that of famed authors Bernard Shaw, H.G. Wells, and many others. The comparison is not exact, however, because while Chesterton seemed ready to become friends with almost everyone, Scalia had a bit of abrasiveness about him that may have prevented his circle from extending quite as widely as Chesterton’s.
In another important respect, though, Scalia is fully Chesterton’s equal. The genius of both men found expression in brilliant writing. Even more importantly, both placed the same premium on clarity. Indeed, clarity was a matter, not simply of style, but rather of public concern and even of the life of their nations. Both sensed that technical and complicated language could be—and was being—used to deceive the people. Thus, in Eugenics and Other Evils, Chesterton took issue not only with eugenicist policies, but also with euphemistic and technical language that concealed the real meaning of the English eugenicist laws and the real goals of their proponents.
Scalia’s clarity of language has made his opinions accessible, not only to legal specialists, but to all concerned citizens. This enabled him both to shine a blinding light on the deficiencies of his colleagues’ reasoning, and to illuminate the real and alarming import of some of their decisions.
The Court’s Obergefell decision last year in favor of same-sex marriage was not only an ill-considered and ill-founded decision, but by overturning state laws supported by millions of Americans and enacted by their elected representatives, the decision represents a positive threat to our constitutional system. In dissent, Scalia proclaimed:
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Upon Chesterton’s death, George Bernard Shaw famously said, “The world is not thankful enough for Chesterton.” The vacancy on the Supreme Court created by Justice Scalia’s passing gives rise to crucial political and legal questions. We must grapple with these questions in the coming weeks and months, but as we do, let us not forget to be profoundly thankful for the life of Antonin Scalia.
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