“Some very good people have some very bad ideas, and if you can’t separate the two, you have to get another day job; you can’t be a judge.” The late Justice Antonin Scalia provided this quotation when asked about his unlikely friendship with colleague Justice Ginsburg. Washington D.C.’s polarization has been noted by many, but Scalia’s quotation does not reveal solely his willingness to simply extend a hand across the aisle; instead, he and Ginsburg were great friends and intellectual sparring partners. He exemplified how politics need not be an all-out dividing force, even at the absolute highest level of intellect and discourse. Moreover, he did so while making popular once again the judicial philosophy of Constitutional Originalism.
Scalia is perhaps most remembered for his staggering erudition; rarely did he write an opinion that did not include historical illusions or legal philosophy outside of the court’s jurisprudence. One such instance comes in Scalia’s majority opinion in Harmelin v. Michigan, an eighth-amendment case in which Scalia begins his opinion referencing the notable cruelty of Lord Chief Justice Jeffreys of the King’s Bench during the Stuart reign of James II. Regardless of their historical underpinnings, Scalia’s decisions are accessible and lively, written in a way that a person without a law degree could ascertain the message of his rulings. In fact, a quick Google search yields an article that states, “Scalia made those around him laugh more than any other justice.” To so deftly blend erudition, passion, and humor, as well as a digestible writing style is a skill any communicator envies. In just one paragraph of his opinion in District of Columbia v. Heller, Scalia diagnoses and provides his answer to the question of gun control. He reminds one that the “Constitution leaves the District of Columbia a variety of tools for combating that problem,” but “what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” He could do a lot with very little.
Given Scalia’s rhetorical style, his bold pronouncement of his opinions, and the veritable confidence he had regarding the correctness of his view, his legal philosophy of originalism is a slight bit ironic. Scalia may have been sure of himself when delivering an opinion, but his confidence stemmed from his trust in the democratic process more than his personal ability to make prescriptive rulings. In fact, such moral judgment by him and his brethren was something he advocated against throughout his entire legal career. So, though he spoke with great conviction, his most strongly held belief was that arbitration of morality and nearly every political issue could be resolved more democratically elsewhere. In other words, he did not conceive of the Supreme Court as the place where answers were given, but rather where constitutional law was applied dispassionately to the most vexing issues. In Texas v. Johnson, Scalia expressed his absolute hatred of flag burning, but emphatically concurred with the majority opinion upholding one’s First Amendment rights to burn the flag; one appreciates Scalia’s intellectual consistency. The very reason aspiring lawyers may have first heard about constitutional originalism may well in fact be because of Scalia. He was a staunch believer in the theory that the best way to interpret the Constitution involved considering how the framers intended the article to be written at the time of its drafting, not how the current justices see fit.
Scalia wrote that the Constitution should be interpreted “neither strictly nor sloppily; it should be interpreted reasonably.” While Scalia aims at reasonable interpretation, there is no shortage of individuals who find his rulings utterly unreasonable, frustrating, and at worst, regressive. An originalist following Scalia’s judicial philosophy asks not what the founders personally believed, but what the original public meaning would have been in the time the constitution was ratified. On its face, this reading is innocuous enough; the real tension arises when an issue of modernity cannot be quickly solved by the Supreme Court if originalists on the bench do not see a constitutional justification for ruling in such a way. A clear example of this phenomenon is Scalia’s dissent in Obergefell v. Hodges—known colloquially as the gay marriage case—in which Scalia asserts that the court over-extended itself. His personal opinions regarding same-sex marriage aside, Scalia lamented the “extravagant praise of liberty,” namely, gay couple’s right to state benefits that accompany marriage, while “[robbing] the People of the most important liberty…the liberty to govern themselves.” And who is to blame for said theft? The nine justices that spoke on behalf of more than 300 million Americans, according to Scalia. In these lines alone, one can see how Scalia captivated his audience; he simply refused to sacrifice his convictions regarding the sanctity of strict constitutional analysis when the modern environment so desperately wanted a progressive ruling from the highest court. Needless to say, even his most polarizing opinions were written with verve and the capacity to persuade.
This type of conviction, though frustrating to many, is laudable in itself. Far too often one sees elected officials act in accordance with party values, pursuant to personal gain, or for illicit reasons unrelated to politics. The nine appointed Supreme Court Justices are meant to solve the issues that have stumped the other levels of the democratic process by appealing to the letter of the Constitution and applying it as fairly as possible. Scalia left very large shoes to fill—one expects nothing less from a larger-than-life figure. Neil Gorsuch has spoken of his admiration for Scalia’s legal philosophy, though one doubts whether Gorsuch will entertain, frustrate, and impress us the way Scalia did. Scalia may have preferred to see the constitution as not being a “living document,” but his approach to interpreting the law is undoubtedly alive and well.
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