Supreme Court Justice Antonin Scalia
Just shy of his 80th birthday and his 30th year on the Supreme Court, Justice Antonin “Nino” Scalia has died. And as people react and consider his life and legacy, it is a perfect time to ask why Antonin Scalia matters?
Clearly, in answering this question the greatest amount of attention will be paid to Justice Scalia’s Supreme Court legacy. In his nearly thirty years on the bench, Scalia decided cases ranging from abortion to capital punishment, gay marriage to religious freedom, campaign finance reform to Bush vs. Gore. Hundreds upon hundreds of cases will forevermore have the concurring or dissenting pen of the irrepressible Justice Antonin Scalia. But Scalia did more than weigh in on cases. He articulated an overarching worldview of jurisprudence that he considered, well, prudent. Having learned from (and added to) the judicial philosophy of his colleagues and predecessors (most famously, Court of Appeals Justice and Professor Robert Bork), Scalia championed a philosophy of Textualism. Textualism deemed it imperative that interpretation of the law depends on what the law says and not on subjective quagmires of context, inference and presumed intention.
A philosophic subtype of Textualism is Originalism which holds that the Constitution’s meaning should be held fastidious to the Founder’s original intent. This interpretive worldview believes there is grave risk in deviating too far from the Founder’s original vision and that an overzealous, crusading Judicial Branch risks usurping the Legislative Branch’s prerogative to democratically change the law. Scalia’s adherence to the Textualist and Originalist interpretive worldview was not rooted in a clever ivory tower elitism, but rather a deep and pragmatic respect for historical precedent as well as a conservative protectiveness of the easily tipped, delicate balance of government power. The Constitution eloquently speaks about the structure of American government, but also the powers and limitations inherent within that structure. On this very topic in a recent televised discussion with fellow Justice Ruth Bader Ginsburg, Scalia passionately rebutted Ginsburg’s assertion that the Bill of Rights is the premier defense against injustice,
“The foundation of our freedom is not based in the Bill of Rights. That was an afterthought. Every tinpot dictator has a Bill of Rights which he casual ignores. What was debated in 1787 and what insures our freedom is our STRUCTURE of government which holds each branch (and in turn by its people) to account. Have no illusions. Structure dictates destiny.”
Scalia’s judicial philosophy, incisive, if not acerbic, insight and disarming wit made him either a formidable foe or an inspiring champion. And his positions have proven consequential to millions upon millions of Americans.
But there’s more…so much more than judicial philosophy and written opinions that illustrate why Antonin Scalia mattered.
Antonin Scalia was an only child of Catholic Italian immigrants. Not only was he the only child of his parents, but the only child in the entire extended Scalia family. As such, there were great expectations for little “Nino”…and he wouldn’t let them down. Raised by two educators (one in Romance languages, the other in elementary education), learning was of primary importance. And just when the oft-described brilliant kid risked thinking he had learned it all, a chastening lesson would be handed to him. In 2008, Scalia described one such moment to Leslie Stahl on 60 Minutes,
Yes, he had gone to all the right schools and received all the dazzling commendations. Georgetown, Harvard Law. Valedictorian, debater, thespian, Harvard Law Review. Scalia rose like a rocket. Before his judicial appointment to the D.C. Court of Appeals and the Supreme Court, he held professorships at the University of Virginia and University of Chicago and served appointments granted by Presidents Nixon and Ford. He intellectually (and likely financially) contributed to fledgling conservative enterprises which soon became juggernauts like the Federalist Society and the American Enterprise Institute.
“One teacher I remember was an elderly Jesuit at Xavier (high school in New York City) from Boston. He had a Boston accent. Father Tom Matthews, and he taught me a lesson that I’ve recounted in some of my speeches. He taught me what I refer to as the Shakespeare principle.
The class was reading one of the Shakespeare plays, ‘Hamlet’ or whatever, and one of my classmates or whatever, sort of smart aleck kid, John Antonelli, as I recall. It’s ridiculous I would remember his name. But [John] made some really smart aleck sophomoric criticism of the play, and Father Matthews looked down at him and he said, with his Boston accent, ‘Mister, when you read Shakespeare, Shakespeare’s not on trial. You are.’”
But these achievements and accolades are dwarfed by (what my dear friend would describe as) Antonin Scalia’s capacity for friendship and his gift of wit and common sense. He loved life. He was devoted to his Catholic Faith. He loved his family (Maureen, his wife of fifty-five years, his nine children and numerous grandchildren). He loved his friends and colleagues (some of his best friends like Ruth Bader Ginsburg were his philosophical nemeses). He loved to laugh. And he loved the Truth.
For Antonin Scalia, the verbal sparring and written fireworks (remember phrases like “jiggery-pokery” and “pure applesauce”?) were all about the art of shaking lawyers, justices and the American people from a torpor of ideology, platitudes and lazy thinking. Of the hundreds of people populating the executive, legislative and judicial branches of American government, Scalia was, for me, one of the few I wanted to hear. Oh without question, as a Supreme Court Justice, he had his clear ideas of what he deemed “right” and faithful to the words of the Constitution. And, undoubtedly, he could be opinionated, brash and brusque. But, in essence, his work was romantic swordplay in defense of legal common sense rooted in a two hundred forty year old tradition. And Scalia’s greatest thrusts and parries were his puckish humor coupled with a perfectly placed insight. Now, let’s be honest…if you have ever read an opinion, listened to a speech or watched a program featuring Justice Antonin Scalia, weren’t there moments where he not only made you laugh, but he also made you really – I mean really – stop and think?
Yeah, me too.
That is why Antonin Scalia matters.
He possessed passionate conviction, sharp wit and a rare common sense.
As I write this, I am saddened by the passing of someone I consider an intellectual giant and a representative from an age and ethic that has passed all too soon. Now to be sure, I didn’t agree with everything Antonin Scalia said, did or wrote. But I did like him. And I will miss him.
As I write this piece, it is late in the evening on the day Antonin Scalia died. And I am listening to Mozart. Mozart, of whom I am in awe and whom I love, has been dead a hundred and eighty years longer than I have been alive. And yet here I sit inspired and astounded by one masterpiece after another…as if he is conducting this Mass or this Opera or that Symphony right in front of me.
I know, I know. Scalia wasn’t Mozart. That’s not my point. But now that Antonin Scalia has passed, perhaps I will be able to listen to his razor sharp wit, watch that broad puckish smile or read his articulate opinion as if he were still with us.
And I will smile.
To be sure. That would be something special.
Antonin Scalia, Requiescat In Pace