How Do You Solve a Problem Like Scalia?

Justice Antonin Scalia was a man of some truly awful legal opinions.  On balance, the United States is worse off as a society for his being on the Supreme Court.

And yet—as we observe a moment of reflection upon his sudden death—it would be horribly unfair if I didn’t also observe (as many already have) that Scalia was a major figure in American government and, for all his insufferableness, I always sort of liked him.

I know:  In saying this, I probably just made many liberals’ heads explode.  On the left, Scalia was nothing if not the perfect ideological antagonist to everything the Democratic Party holds dear.  As someone who was stridently anti-abortion, anti-gay marriage, anti-gun control and pro-Citizens United, Scalia served as the poster child for everything that’s wrong with conservatism in America.  More to the point, as a Supreme Court justice, he had the power to effect a socially regressive society in ways that a senator or congressman—or, in some cases, even a president—can only fantasize about.  Whenever we left-wingers needed a bogeyman to unite against, Scalia was always there to do the job.

And boy did he deliver.  Asked to justify his concurrence in Bush v. Gore, his response was always the same:  “Get over it.”  When the Court struck down a Texas anti-sodomy law in 2003, Scalia in his dissent appeared to equate homosexuality with bestiality, incest and murder.  In a recent affirmative action case—also in Texas—he rather casually mused, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well […] as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

With such charming quips as those, you may well ask:  What exactly is there to like?  Even if Scalia himself was not a racist, homophobic bigot, he certainly trafficked with folks who were.  Can’t we just dismiss him as an anachronistic cretin and move on with our lives?

Only at our own risk.  The truth is that, intellectually-speaking, Scalia was the single most influential Supreme Court justice of the last quarter-century (if not longer) and the basis of his appeal is just too interesting to overlook.

That appeal, in short, was the combination of having a singular (and somewhat eccentric) judicial philosophy and in executing that philosophy with unrestrained passion and gusto.  Here was a man who loved his job with every atom of his soul and conducted himself such that anyone who fell into his orbit could survive only through rigorous intellectual combat.  His was a life of high purpose and, it would appear, great happiness.  Too see him talk, you sense he lived the American dream and relished every moment of it.

It’s easy to understand why so many conservatives regard Scalia as some kind of secular saint.  If I agreed with his worldview, I’d probably feel the exact same way.

The worldview in question—in case you’ve tuned out the last week—is known alternately as “originalism” and, as Scalia preferred, “textualism.”  Those two terms—not completely interchangeable but close enough—stipulate that the Constitution should be interpreted based on what its authors meant at the time, rather than what we might take it to mean today.

This would result, for instance, in the 14th Amendment’s guarantee of “equal protection” not extending to same-sex marriage, since gay people were clearly not on anyone’s mind when the amendment was ratified in 1868.  Nor—as Scalia often argued—could capital punishment be considered “cruel and unusual”—and thus unconstitutional—since when the Eighth Amendment was adopted in 1791, the death penalty was an utterly usual practice in the nascent American republic.

In other words—according to the originalist creed—even if we reached a point where every one of us agreed capital punishment amounted to cruel and unusual punishment, the Supreme Court would still be compelled to uphold its constitutionality—indeed, even if the justices themselves felt the death penalty was a terrible idea.

Call me old-fashioned, but I find it rather charming—if not outright noble—to champion a judicial philosophy that might prevent you from ruling according to your own best interests—to follow a theory to its logical conclusion, no matter what that conclusion might be.  It’s easy enough to believe in a “living Constitution” that can be molded to accommodate whatever you think the law should be.  It takes a whole lot more nerve—and a perverse degree of humility—to limit the judiciary to merely clarifying what the law is—or should we say was, circa 1787.

It’s not a question of assuming the Founding Fathers were perfect and had everything figured out from now until the end of time.  Originalism, as advanced by people like Scalia, merely holds that the Constitution should be treated like any other legal document:  It means whatever it meant in the context of its time, and we have no right to infer things its authors could not possibly have anticipated, even if we in the present think we know better.  Besides, we can always turn to the two other branches of government for help:  If you don’t like the law as written, then round up some senators and change the damn law.

Scalia always allowed that his approach to jurisprudence might lead him, as a justice, to issue a ruling that was diametrically opposed to how he would vote as a private citizen.  Every now and again, such a phenomenon actually occurred, and he deserves enormous credit for valuing his principles over his own political views.  To be in such a uniquely powerful position and not take advantage at every juncture requires enormous intellectual discipline.  I’m not at all sure that I could (or would want to) pull off the same trick.

In fairness to the American left, Scalia spent an awful lot of his career behaving like an intemperate jerk, peppering his written opinions with needlessly divisive language that didn’t necessarily do him much good.  By his own admission, he had neither the gift nor the inclination for building coalitions or bringing other justices around to his point of view.  He had his theories of what the Supreme Court should be, and if anyone thought differently, they could just as well go to hell.  As if that weren’t enough, there were instances in which he didn’t follow the logic of his theories and seemed to formulate judgments on the fly, which he would justify with such priceless rationalizations as, “I’m an originalist.  I’m not a nut.”

At his best, however, Scalia embodied the qualities of some of my favorite people in history:  He developed clear convictions about how to do his job and defended them loudly against any and all challenges, heedless of the risk to his personal image or, frankly, any other professional consequences.

By all means, our government should never have too many of these meddlesome gadflies at any one time—can you imagine if every senator were as irascible as Ted Cruz?—but it’s essential that we always have one or two to keep the others honest.

Scalia, on the whole, was a man of honor.  He steadfastly advocated a particular idea about the Supreme Court that was not especially popular in his lifetime, but which (thanks to him) may well become gospel in the future.  While I think his take on originalism did a lot more harm than good while he was alive, I take some comfort from his conceit that creating a better society was never really his objective in the first place.


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