Associate Justice Antonin Scalia died this past weekend. By now he either knows that his lifetime of toil as a dedicated Catholic was worth it, or he doesn’t. One would be the majestic culmination of earnest belief, the other cruel irony. During his time on the nation’s highest court he doled out both in nearly equal measures. He was and will likely remain a towering figure among American jurists. No one before him was quite as engaging during oral arguments. Few before him approached their duties with such intellectual rigor or passion. It was the latter that most often got him into trouble and at times alienated him from his colleagues and much of the country. He was not afraid to call other justices’ reasoning “ridiculous” and their consideration of certain questions “silly,” as he did in a dissent of PGA Tour v. Martin that is more entertaining to read than the game at the center of the case.
For the Court’s staunchest “originalist”—the idea that the Constitution must be read for only the meaning it would have had to the 18th century framers—it must have been a different kind of irony to commit three decades to the high calling of judicial review, a duty that is nowhere to be found in the Constitution’s Article III. The concept of judicial review stems not from the Constitution, but the famous case of William Marbury, a jilted appointee of President John Adams, whose commission James Madison, the new Secretary of State under Jefferson, refused to deliver. Alas Marbury v. Madison did not help poor William attain the high office of Justice of the Peace for the District of Columbia, because the Marshall court found the Judiciary Act of 1789—the basis of Marbury’s complaint—to be unconstitutional. It is that case, not the original text of the Constitution, that allowed Justice Scalia and his “originalism” to make rulings on the Constitutionality of law. It would seem, as Justice Scalia argued in relation to many other issues, that if such an important duty was meant for the High Court, the framers would have explicitly stated as such. Yet even when they did make explicit statements, the justice often found them superfluous.
In an opinion with long-lasting impact to one of the most divisive issues of our time, his textualism could not bring him to conclude that the representatives of the people of the District of Columbia could limit the licensure of weapons in the city on the basis that the gun owner was not a member of a “well-regulated militia.” Instead he argued that the prefatory phrase in the 2nd Amendment simply stated a purpose; it could not alter the meaning of the operative clause that followed. It was a brilliant piece of logic that may or may not have captured exactly what the framers intended.
Scalia’s originalism often put him at odds with a changing America. In every sense, that was exactly the point. In comments about the rising acceptance of gay marriage, he once intoned that at the time the 14th Amendment was ratified every state had laws on the books defining marriage as between one man and one woman. “That should settle the matter,” he said. One can take originalism too far, and Justice Scalia often did. At the time of the ratification many states had laws respecting slavery, and no woman could vote. Should such facts also settle those matters? To attempt a critique he would likely find worthy, it would be preposterous to think so.
Whether or not originalism can stand remains to be seen. It sets itself against the entire course of human history, a history that confirms the norms and standards of all societies change over time. It finds itself at odds with the very nature of the law, a system built on the concept of emerging truths that eventually become the canon already laid down. Perhaps most fatally, while originalism may keep a judge, as Scalia often noted, from declaring, “the law means what I say it means,” it cannot prevent that same judge from saying, “the framers meant what I say they meant.” At some point, a decision becomes a balance between the objective and subjective. That is the reason confirmations have become contentious and why we now, most unfortunately, describe an explicitly nonpartisan body as a “conservative” or “liberal” court. If our three-branch system is to remain in the form we know it, we simply have to accept the humanity of judges. His arguments were tightly reasoned and supremely logical, the bounty of a deeply elegant intellect, but not even the principled Justice Scalia could avoid our very nature. Even so, for the Court’s most outspoken conservative, one must say he was far more a jurist than an ideologue. But to conclude so, one must also acknowledge that his colleagues are deserving of the same understanding of their balance between intellectual duty and personal philosophies.
It will take a while to understand the full context of Justice Scalia’s legacy. It seems fairly clear even now that he will be regarded among the giants of the Court. That passion, even in dissent—and possibly because of it—will likely stretch his influence into the next century. He wrote mostly for a future that would eventually return to what he considered a deeper clarity. One that perhaps would be less willing to breathe life into a document he once described as “dead.” He hoped for one that would stop asking what the Constitution is supposed to mean in the present and would simply ask, what did it mean. Amazingly to him, it was a radical concept.
That case back in 1803 set modernity and the supremacy of law on a collision course when Marshall’s court first stepped off the written pages of the Constitution. That it eventually led to the job for which Justice Scalia will be forever remembered is altogether majesty and irony. It somehow seems fitting for an uncompromising conservative who spent New Years’ Eves with his great friend and the court’s most liberal member; for someone equally at home in the formality of the High Court and Washington cocktail parties where he regaled attendees with raucous tales. For his commitment to originalism, and for his verbosity and wit during oral arguments, the justice was something he never would have claimed. He was, by nearly any measure, a revolutionary. With all the conservative bluster he could summon, he would publicly disdain the label. Privately though, I have to think he would almost certainly revel in it.