National Review Online
Sunday, February 14, 2016
The sudden and untimely death of Justice Antonin Scalia
on February 13 is a reminder of two things — first, how much he himself meant
to the rule of law and the integrity of our Constitution; and second, how very
much is at stake in this year’s presidential election. Justice Scalia was a
champion of textualism and originalism in the reading of both statutes and the
Constitution, and he was the reliable anchor of the Supreme Court’s originalist
wing in an era of deep division and conflict with the “living Constitution”
approach to jurisprudence that holds down the other wing of the Court. His
passing leaves the contending sides slightly less evenly matched, if anything
maximizing the influence of Justice Anthony Kennedy, the notorious swing vote
who alternates between constitutional constraint and progressive abandon.
Scalia was already an important figure in conservative
legal circles when he was appointed by President Reagan in 1986 — present at
the creation of the Federalist Society as a professor at the University of
Chicago, and for four years an accomplished judge of the D.C. Circuit Court of
Appeals. His nomination to the Supreme Court was confirmed 98–0, an outcome
that would have been unlikely if he had not been succeeding William Rehnquist
(elevated to chief justice at the time), with Republicans in control of the
Senate. (Witness the furor a year later when Reagan nominated Robert Bork to
succeed the swing-vote Lewis Powell, with Democrats in the majority.)
Scalia was a devout Catholic, the patriarch of a large
family, famously on good terms with his jurisprudential opposites Ruth Bader
Ginsburg (they shared a love of opera, among other bonds of friendship) and
Elena Kagan (whom he introduced to hunting), and a beloved friend and mentor to
countless people in the conservative legal movement. No doubt thousands of
lawyers, judges, constitutional scholars, and students count Scalia as an
inspiration. To his widow Maureen, his family, and his many friends and
admirers, the editors of NR extend our deepest condolences.
With his brilliance, his tenacity, and his devastating
wit, Justice Scalia transformed the terms of debate in American constitutional
law. Under his commanding intellectual influence, constitutional discourse both
on and off the Court took an originalist turn. By far the most eloquent and
effective writer of judicial opinions in the past 60 years of Supreme Court
history, Scalia was equally ready to advance his views in books, articles, and
public appearances — and to spar cheerfully with those who disagreed with him.
It would take many pages to give an adequate accounting
of the contributions Antonin Scalia made to our legal order. Eschewing
“legislative history” in the reading of acts of Congress, Scalia brought new
standards of interpretive rigor to the art of statutory interpretation. In
constitutional law, Scalia championed the structural features of the separation
of powers and federalism, led the Court in the recognition of Second Amendment
rights, advocated a colorblind reading of equal protection, and reminded his
colleagues and his fellow countrymen that property rights (especially as
protected by the takings clause) are no less important than the “civil
liberties” prized by the Left.
Justice Scalia was no mere ideologue; some of his most
notable opinions had “liberal” results for criminal defendants, and he voted to
strike down bans on flag-burning under the First Amendment. But his abiding
contribution was in trying to stem the tide of government by judiciary. When
puncturing the pretensions of “levels of scrutiny” or skewering the progressive
invention of “rights” to abort the unborn or to change the legal definition of
marriage, Scalia was the Great Dissenter of our age.
And it is precisely because of Justice Scalia’s
three-decade effort to rein in a runaway Supreme Court that we urge Senator
Mitch McConnell and his fellow Republicans to stand fast in their resolve to
deny President Obama the capture of Scalia’s seat on the Court. For one thing,
there is no urgency about filling the vacancy. The Court will conclude oral
arguments in the current term by the end of April; no justice arriving after
that could participate in a single one of this year’s cases, and confirmation
in time to consider even a handful of them would entail an unseemly rush. And
the justices can begin the October 2016 term shorthanded without any
difficulty, setting the calendar to wait until early 2017 before taking up the
most critical cases.
More important, with the Court so evenly divided, with
President Obama such a proven devotee of a living Constitution that
simultaneously upends settled legal understandings and liberates executive
power, and with an election less than nine months away, this is no time for
feckless accommodation over the future of the Supreme Court. Judicial
imperialism is a cancer in the body politic. It would only metastasize with
another Obama appointment. This election season, the Republican candidates for
president — especially the eventual nominee — must place the politics of the
judiciary squarely before the people, showing them that the only way toward a
less political Supreme Court is through a more openly political debate about
its future.
If this happens, Antonin Scalia will have done, in death,
one last great service for his country, rescuing American voters from a binge
of silliness and sobering them up about their great responsibility as a
self-governing people in a constitutional republic. Whatever happens next,
Justice Scalia has our abiding respect and gratitude. R.I.P.
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