Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing.
Stephen Cox's elegy is here.

Antonin Scalia, longtime associate justice of the Supreme Court of the United States, was a talented writer whose position afforded him innumerable chances to wield his pen in forceful argument for his often curiously shifting but nonetheless deeply felt views. He was also by some distance the most public justice, often giving speeches laying out his judicial philosophy and thoughts on upcoming jurisprudence, sometimes to the point that he had to recuse himself from a case.

Scalia’s pompous blowhardity made him a gleefully divisive figure in the highest court of a land drifting ever farther away from his own conservative, masculinist Catholicism. After Harvard Law and a little while in private practice, Scalia taught for several years at the University of Virginia Law School, and would later return to academia at the University of Chicago. His own jurisprudence bore the hallmarks of his time as a teacher: his opinions—which, unlike many justices, he did not largely hand off to his passel of clerks—were didactic, condescending, and all-too-aware of the distance between his enrobed augustness and all else outside the cloakroom.

As a public figure, Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed. He scarcely met a presidential prerogative he didn’t like, whether the right to order the torture of supposed enemies, deny due process at will, or pursue “interstate commerce” into the individual home. Despite his famed “faint-hearted originalism,” Scalia was never far from trampling over the Ninth and Tenth Amendments in the service of executive might. Even when his decisions favored a broadly libertarian policy, such as eliminations of gun control or overturnings of illegal searches, they often did so in a way that declined to limit future exercises of the power of the state. More often, though, when he looked to the Constitution, he found justifications for his own predilections to expand use of the death penalty even to the mentally disabled, criminalize homosexual acts, and sign onto four separate dissents against gay marriage.

Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed.

It is, in one sense, ironic that the first response of Republican legislators to the death of their originalist hero was to defy constitutional statements clearly allowing the sitting president, no matter how lame a duck he might be, to suggest a replacement for the fallen justice. But it’s certainly not surprising: in this, the GOP is simply following Scalia’s own example (as well as that of basically every other politician), honoring and vociferously upholding the Constitution when it supports their own tribal position, and ignoring it as soon as it suits them to do so.

There remains a great deal to sort out in the wake of Justice Scalia’s sudden death. Any cases for which decisions have not been rendered, even those which have been argued and voted upon, will not take Scalia’s vote into account. In the short term, this means public unions nationwide get a reprieve from right-to-work measures, and President Obama’s climate change plan is likely to survive a little longer. In the medium term, it means a nasty confirmation fight, as Obama tries to get a justice though a Republican Congress with no intention to allow one. (Probably the worst case here, actually, is a compromise candidate in the form of a socially moderate, tough-on-crime-and-terroists type, à la David Barron.) In the long run, the court has lost its most entertaining and most self-consciously intellectual jurist. We could do with a few less like him.



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Comments

Johnimo

Who is a current Supreme Court justice for whom you have high regard? I can appreciate your derisive attitude about Scalia's inconsistencies more if you give us reasons why you admire one of the others, perhaps one you feel more routinely adhering to his or her philosophical moorings.

Andrew Ferguson

I find at least something to respect in almost every one of the justices—excepting perhaps Breyer, who wouldn't even be worth the postmortem, and Kagan, who hasn't seemed to do all that much yet (but has the benefit of not being Breyer). I can't say though that I hold any of them in particularly high regard. I confess myself a little bemused by the thought that high regard would be desirable or even possible to maintain for anyone intimately bound up with our government in its present formation.

The nearest I could get to your request is Alex Kozinski, on the Ninth Circuit Court of Appeals. While I would disagree with him on a number of matters, his formalism is far less bloodthirsty and far more critical of state power than Scalia's. He also manages to write good, entertaining prose in his opinions without looking down his nose at anyone. It's a pity he wasn't raised up to the high court when he stood a chance; nowadays I'm afraid that the security state and the prison complex wouldn't dare allow him a lifetime seat from which to criticize and frustrate their dealings.

Johnimo

Thank you for your very thoughtful reply. As one who follows the courts only superficially, I'll use your critique as a starting point from which to dig deeper.

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