Justice Scalia, Political Philosopher and Political Football

By Dan McLaughlin

Saturday, February 13, 2016

It is difficult to summarize briefly such a monumental career as that of Justice Antonin Scalia, let alone to do so not with the distance of history but in the heat of the most heated of political moments – in the midst of a presidential campaign, on the evening of a potentially make-or-break primary debate, and in the middle of a Supreme Court Term with many big cases that could end 4-4 without him.  But for a man who was quick with the pen and the barb from the bench, perhaps it was meant to be that way.

Scalia’s death will doubtless dominate tonight’s debate in South Carolina. For Ted Cruz, it’s a chance to stress his own brilliant legal career and dedication to Constitutional principle; for Marco Rubio, a chance to stress the stakes in winning this election; for Donald Trump, a moment to try to prove despite all his history that he knows how to speak to pro-lifers and constitutional conservatives. In a sense, Cruz and Rubio must speak for the very thing Scalia dedicated his life to: replacing the gut-level right-wing instincts of earlier brands of judicial conservatism with a philosophy in which ideas had consequences, means mattered as much as ends, and We The People was more than just the handy slogan of the demagogue.

Scalia’s impact on the Court was vast despite the many times he fell short of commanding a majority on the Court to his views of major issues. Originalist interpretation of the Constitution was a dusty corner when he took to the Court 30 years ago, but today it is routinely a language in which even his adversaries must contend. His persistent shaming of the use of “legislative history” (Scalia would sometimes dissent from a single footnote in an otherwise unanimous opinion) greatly reduced its impact in the Court’s opinions. He was probably more influential on the Court’s interpretation of legislation than its interpretation of the Constitution. He was greatly concerned with questions like how to construe a law in ways clear and unambiguous enough to reduce the role of discretion, eliminate needless or costly litigation and uncertainty, and preserve the primacy of legislators rather than judges or bureaucrats in writing laws. At every turn, he deployed both intellectual rigor and literary verve, and like all great combatants in the world of ideas, even when he lost – even when he was wrong, as he sometimes was – he forced his adversaries to raise their game.

The highlight of my law school career was when Justice Scalia accepted an invitation from our Criminal Law class to come debate our professor, Alan Dershowitz. They stood literally toe to toe, and it was the only time I ever saw either argued to a standstill. Scalia, predictably, at one point whipped out his pocket Constitution and declared theatrically that Dershowitz was asserting something that “isn’t in my copy!” Reading his opinions in college was what convinced me to become a lawyer, and many others had the same experience. That included his magisterial lone dissent in Morrison v. Olson, in which he predicted with great accuracy the harm the Independent Counsel statute could do to the nation – a prediction liberals derided at the time but accepted a decade later when they let the old monstrosity die in the wake of the Clinton impeachment.

The most important part of Scalia’s jurisprudence was his understanding of political philosophy – he was fond of pointing out that tyrannies like the Soviet Union had wonderful Bills of Rights, but that the Constitutional separation of powers was the real guardian of liberty without which a list of rights was just a parchment fraud. Over and over throughout the years and in myriad contexts, Scalia focused not only on legal formalism but on how the law was made, enforced and interpreted. In a sense, he dedicated his whole career to that same radical question that drove the Founding Fathers, the question of legitimacy: who who gave us the right to decide this? It is that question that drove his originalism, his textualism, his concern for the separation of powers and federalism, his endless search for legitimacy. If you know who decides, the decision itself is usually foreordained. Scalia loved the Court and its business, but he demanded that it recognize the superior role granted in our system to We The People, in order that we be a government of laws, not of men. The awesome political power and impact of the appointment of Scalia’s successor testifies to how tenuous this idea remains to this day.