“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.” – Theodore Roosevelt
Justice Antonin “Nino” Scalia passed away at the age of 79 sometime during the night between February 12 and 13 at the luxury resort Cibolo Creek Ranch near the town of Marfa in west Texas. The San Antonio Express-News broke the news, stating that Justice Scalia was at the resort as part of a large hunting party. Further, The Express-News wrote that he had retired to his room earlier than most on Friday evening. When he did not appear for breakfast, an employee went to Scalia’s room where he found the Justice’s lifeless body. The same Express-News report informed readers that there is no suspicion of foul play and that Justice Scalia died of natural causes.
Scalia’s opinions and dissents were famously witty and forceful and he was known for asking piercing questions of attorneys during hearings. Justice Scalia adhered to the legal theory known as textualism; an adherent of this theory is defined by Southeast Missouri State University Professor Hamner Hill as: “an originalist who gives primary weight to the text and structure of the Constitution. The text means what it would have been understood to mean by an ordinary person at the time it was written.” Scalia’s adherence to textualism meant that he often sided with what is often referred to as the Court’s “Conservative bloc” by the media.
Scalia remained a devout Catholic throughout his life and regularly attended mass at St. Catherine of Siena Catholic Church in Great Falls, Virginia. As his faith was an important part of his personal life, Justice Scalia never shied away from publicly expressing and defending his Catholic beliefs when prompted. A lesser-known aspect of Scalia’s distinguished career was his time as professor at the University of Virginia School of Law between 1967 and 1974, though he was on leave between 1971 and 1974 due to his work for the Nixon administration.
Justice Scalia leaves behind his wife Maureen, nine children, and thirty-six grandchildren as well as a great number of friends, including his colleague Justice Ruth Bader Ginsburg, with whom he enjoyed a close and enduring friendship despite their many differences on the Court. A number of public luminaries, such as President Obama, Senators Cruz, McConnell and Rubio as well as Governor Greg Abbott of Texas have publicly expressed their condolences.
This unexpected tragedy deprives the conservative movement of perhaps its most eloquent, brilliant, forceful and influential proponent since the passing of William F. Buckley in 2008.
These twin pillars of modern American conservatism shared an important trait: they were builders. While they operated in different– if sometimes overlapping– disciplines, Buckley in politics and Scalia in law, neither was content with eloquently and successfully promoting their views. As did Buckley use National Review and his platform as the host of Firing Line to nurture the post-war intellectual renaissance of conservatism, so did Antonin Scalia help found The Federalist Society, which helped train generations of of jurists who embraced, supported and developed the textualist understanding of the Constitution Scalia relied on in his deliberations. Moreover, Justice Scalia was a prolific, tireless writer and lecturer, visiting symposiums, universities, foundations, and many other institutions to defend, promote and protect the textualist legal philosophy he embraced. This is what made Scalia the Buckley of conservative legal theory; he was not satisfied with merely voicing his opinion, so he built a movement to ensure its survival and influence for decades to come. For all his contributions, the conservative movement owes him its lasting gratitude.
There is a more sentimental aspect to the Justice’s passing as Scalia’s death also removes one of the last tangible links to the Reagan administration for a younger generation of conservatives who only vaguely recall President Reagan or were born after he left office. While the political parameters set by Reagan remain with us to this day, and although they remain monumentally important, they are easily forgettable. Scalia was a concrete, regular reminder of how President Reagan changed the public discourse in a more conservative direction. Justice Scalia was a product of the Reagan Revolution; he proudly carried its torch until he drew his last breath and with his passing, the light of the Reagan memory grew just a little dimmer for young conservatives.
On the Supreme Court, Scalia was not the most influential justice in that he wrote his most seminal opinions on issues such as abortion, gay rights, affirmative action, and healthcare. That distinction usually belonged to Justice Anthony Kennedy or Justice Sandra Day O’Connor during Scalia’s tenure. However, his legacy was more far-reaching than his opinions might suggest. In a 2012 interview with then-CNN anchor Piers Morgan, Scalia said that his greatest achievement on the Court was that he got the the Supreme Court to “pay more attention to the text [of the Constitution]” and much less attention to congressional debates and legislation, which he believed had unduly influenced constitutional interpretation in the past. Ross Douthat of The New York Times wrote that Scalia’s legacy “would set the agenda for a serious judicial conservatism and define the worldview that any ‘living Constitution’ liberal needed to wrestle with in order to justify his own position.” In essence, Scalia greatest legacy will perhaps be that he put the “living constitutionalists” back on defense and made them justify their reasoning.
As for individual decisions, the 2008 D.C. v. Heller ruling, which struck down restrictions on gun ownership in the District of Columbia and curtailed their enactment throughout the nation, will likely go down as Scalia’s most consequential. National Journal summarized the Court’s opinion (authored by Scalia) as “ruling that the right to bear arms is an individual right, not premised on membership in a ‘well-regulated militia.’”
Scalia was also well-known for his acerbic dissents, such as that against the U.S. v. Windsor ruling, which struck down the Defense of Marriage Act and set the stage for nationwide legalization of gay marriage. Scalia wrote, “The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows.” Scalia correctly pointed out that Windsor would lead to federal courts overturning state bans on gay marriage, proving that behind his fiery dissent was a deep understanding regarding the implications of decisions with which he disagreed.
Less known and appreciated was Scalia’s significant libertarian streak. In Texas v. Johnson, a 1989 ruling that held that flag-burning was constitutionally-protected free speech, Justices Scalia and Kennedy joined with “liberal” Justices Blackmun, Brennan and Marshall to form a majority. More recently, writing for the minority on the 2013 Maryland v. King ruling, one that made it easier to collect DNA samples from suspected criminals, Scalia (true to textualism) sarcastically wrote, “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection”. The reason for Scalia’s breaks with justices he often otherwise agreed with such as Rehnquist, Roberts, Thomas and Alito can likely be explained by his commitment to the textualist principle. While true that this often meant he aligned with the “conservative” bloc, Scalia was not afraid to break ranks if he believed the text of the Constitution had been misinterpreted. It is therefore unfair to characterize Scalia as a blind servant of conservative partisan interests, as he was a man of principle and nothing less.
Scalia left a significant legacy on the Court, as he put it, of pushing the Court towards a more textualist view of the Constitution and abandoning the idea of a “living Constitution” as the default philosophy. Even though Scalia’s dissents, often as witty and brilliant as they were caustic, helped push the Court in a textualist direction, pointing out what Scalia believed were the flaws of the majority holding, this nevertheless prevented said arguments from frequently re-emerging without opposition. This point was perhaps best articulated by his friend, Justice Ruth Bader Ginsburg who wrote after his death, “Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion.” Democratic jurist Cass Sunstein echoed this, writing of Scalia: “He was not only one of the most important justices in the nation’s history; he was also among the greatest. With Oliver Wendell Holmes and Robert Jackson, he counts as one of the court’s three best writers.” Ginsburg and Sunstein both speak to the objective fact that Scalia, regardless of how one views his opinions, deserves to be regarded as a brilliant and influential jurist.
Finally, another less appreciated trait of Scalia’s is that he could be something of an iconoclast, as he did not always fit neatly into the “conservative” or “liberal” bloc the media often places a justice in. This label is an important part of his time on the court that one ought not forget, because it speaks to the fact that he held principle above politics.
There is little doubt that Scalia’s death, and the power to shift or maintain the ideological balance of the Supreme Court, will impact the Presidential election; to what degree is less discernible as it’s perfectly plausible that many voters will not be engaged by Supreme Court appointments.
The emerging conventional media wisdom seems to hold that immediate beneficiaries are Ted Cruz and Hillary Clinton. Cruz clerked for Chief Justice William Rehnquist, served as Texas Solicitor General and is a member of the Senate Judiciary Committee and can thus delay and excoriate any appointments made by the incumbent President. Furthermore, Cruz’s legal experience provides him with with the qualifications that would allow him to fill the position with an able successor who would continue Scalia’s legacy.
Hillary Clinton can now point primary voters to a tangible reason she believes a Democrat needs to win in November, possibly breaking the Sanders spell. The immediate losers are supposedly Donald Trump and Bernie Sanders, indeed Sen. Cruz hit Mr. Trump on Supreme Court appointments in Saturday’s GOP debate, claiming the populist billionaire would support “liberal” Supreme Court nominees. He argued that conservatives cannot trust the heterodox Trump to make reliably “conservative” appointment to the high court. The argument against Sanders, promoted by Clinton, is more subtle, but it boils down to that Democrats should not gamble with an overly ideological candidate and thus lose the opportunity to appoint a new Supreme Court justice. I will add that conventional wisdom has been worse than useless this election season, so take these observations with buckets of salt.
My personal prediction is that the opportunity to appoint a new Supreme Court justice might hurt Trump and Sanders at the margins, but this is not the issue that will bring either one down, as it’s simply too arcane and removed from most voters’ daily concerns. As for the general election, I also predict that this will remain a marginal issue, except for a burst of attention when important decisions are handed down in June. Generally though, I expect the nomination process to be overshadowed by economic concerns and national security questions. Chances are that I’m completely mistaken.
For senate Republicans, this is as President Reagan said in 1964 “A Time for Choosing.” If they wish to retain any credibility in the eyes of conservative voters, they ought not consent to any new Supreme Court justice appointments until the next President is inaugurated, because for this generation’s conservatives, this is the line they must not cross, and this is the price they must not pay.
To retain credibility in the eyes of conservatives who put them in office, the Republican majority ought to reject this President’s Supreme Court nominee under Article II Section 2 of the Constitution which vests the Senate with the power to “advice and consent” on Supreme Court nominations among other positions, consent being the operative word in this context. There is nothing that prevents the President from nominating a candidate. However, if the Republican Party permits this President to muscle through a nominee in the twilight days of his administration– a nominee who would protect his legacy for decades to come, and surrender Scalia’s seat without a fight– then the Grand Old Party deserves to be consumed by the populist flames fanned by Donald Trump.
For those who do not find the constitutional argument persuasive, and those who believe President Obama should get his way with judicial nominations regardless of the Constitution, I would advice them to look up the following names: Abe Fortas (Johnson) , Clement Haynsworth (Nixon), George Harrold Carswell (Nixon), Robert Bork (Reagan), Douglas Ginsburg (Reagan) and Harriet Miers (Bush). With the exception of Fortas, nominated by Lyndon Johnson, and Harriet Miers, who was nominated by George W. Bush, the remainders were nominated by Republican presidents for the Supreme Court and subsequently rejected or otherwise thwarted by Democratic senate majorities. The reasons for rejection varied, but at times it was because said majorities disagreed with the justices ideologically. One such example was Bork, a former Solicitor General and an esteemed professor, legal scholar, and judge. Other nominees were rejected for reasons unrelated to ideology, but due to some relatively innocuous background information (Douglas Ginsburg’s use of marijuana as a student and young professor). In fact, Justice Kennedy is on the court today because the Senate rejected Bork and undermined Douglas Ginsburg. The notion that a President always gets his Supreme Court appointments approved by the Senate is little more than fiction. The argument that the Senate should simply submit to the President’s wishes is thus simultaneously ahistorical and constitutionally hollow, and so, there are no excuses for the Republican Party in this instance.
Sonata for a good man
Regardless of how one perceived Scalia’s judicial philosophy, by most accounts he was a wonderful, funny and warm person. Cass Sunstein wrote: “He was a great man, and a deeply good one”, recalling how Scalia, then a law professor, had taken his younger colleague Sunstein under his wing despite their ideological differences. When Scalia left the University of Chicago where Sunstein taught, Scalia called Sunstein into his office to hand over the files he had accumulated over the years. Sunstein described them as “filled with illuminating nuggets about the law”. Sunstein treasures that moment to this day, writing of Scalia’s character: “To a kid law professor, that was an act of extraordinary generosity, carried out quietly and with grace”.
Justice Ruth Bader Ginsburg said of her friend, “From our years together at the D.C. Circuit, we were best buddies… It was my great good fortune to have known him as working colleague and treasured friend.” Ginsburg and Scalia bonded over a love of opera, wine, and fine cuisine. In her statement after Scalia’s death, Ginsburg recalled one evening of the kind that cemented their friendship: “Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer.” No doubt, Justice Ginsburg will miss their friendship as long as she lives.
Time Magazine confirms the perception of Scalia as a warm, sociable man, writing in 1986:
“After dessert at the Scalia home in McLean, Va., guests are often found grouped around an upright piano in the living room. At the bench, banging out old tunes and, in his hearty baritone, leading the crowd of amateur songsters (which often includes such regulars as Justices Rehnquist and O’Connor), is the master of the house, Antonin Scalia”.
For over thirty years, he made Washington a more hospitable place for ideological friends and foes, luminaries and unknowns. Now he is no longer there, leaving an undeniable void in the nation’s deeply divided capital. Scalia’s friendships across ideological lines belies the image of him as a fire-breathing ideologue, because by most accounts, behind his pointed opinions, wit, and legal brilliance he was a man, loved by almost all who knew him.
For the broader conservative movement, those who embrace the promotion of conservative principles in the public forum as opposed to merely in elective politics, Scalia’s death is an irreplaceable loss. Nonetheless, his memory and the fruits of his long struggle for a return to the consistent, textualist interpretation of the Constitution cherished by conservatives, and his effort to nurture a new generation of scholars and jurists espousing those same principles will remain. In conservative lore, it can be said of Antonin Scalia, just as was said of Abraham Lincoln at the time of his death so many years ago, that “now he belongs to the Ages”. Conservatives have lost their man in the arena, never afraid to fight, never afraid to fail. For this, Antonin Scalia will be sorely missed, but never forgotten.
By William Montgomery, Executive Editor