In 1996, Antonin Scalia assessed the legacy of the great liberal Justice William Brennan: “He is probably the most influential justice of the century.” Depending on future events, the legacy of the great conservative Scalia—who died Saturday at 79—may eclipse that of Brennan.
Scalia’s death is a monumental event; a Supreme Court without him is difficult to imagine. His legacy is so large and complex that it will take weeks simply to catalogue the questions he leaves behind.
By all accounts, in private Scalia was a figure of considerable charm to liberals and conservatives alike. As a public man, he was by turns impish, saturnine, quarrelsome, and penetrating. He set the terms of debate in the law in not one but two areas: the interpretation of statutes (which is the bulk of the Court’s docket) and the application of an 18th-century Constitution for 20th- and 21st-century needs. In statutory construction, he emphasized the text and the text alone. Before his ascendancy, it had been customary to infer the “intent” of the legislature from committee reports and statements by the measure’s sponsors. Scalia would not have that—only the words of the statute were law, he insisted; a reviewing court should apply only them. Though Scalia called his approach a modest one, the austere textual creed had the effect of placing judges at the center of the complex world of federal statutes. That said, it must be added that his background in the law of administrative agencies made him a careful reader—which a textualist ought to be. In cases with no ideological valence, it was clear that his colleagues often looked to him for legal guidance.
On constitutional questions, however, his approach was almost the reverse: The Constitution must be read as it was “originally understood”—requiring historical research to determine the “original public meaning” of such terms as “the right to keep and bear arms” and “cruel and unusual punishment.” The “original public meaning” of those terms, he insisted, was easy to discern from Founding-era documents; the duty of a judge was to apply that meaning and nothing else. Not a “living document,” he said, it was “the good, old dead Constitution,” fixed in meaning until the people changed it by amendment.
In 2016, it’s hard to remember that, when Scalia joined the Court three decades ago, “originalism” was a vaguely disreputable heresy. Constitutional law was dominated by Brennan’s idea of “contemporary ratification”: the argument that each generation must interpret the Constitution according its own needs and the changes in society since the Framing. Three decades later, liberals and conservatives speak the language of “original meaning.” Consciously or not, they are playing by Scalia’s rules.
Though he was proudly conservative, his conservatism was complex. On civil liberties, he championed the Fourth Amendment’s protections against “unreasonable” searches and seizures. In a groundbreaking series of cases, he also pioneered the doctrine that criminal defendants could not be convicted or sentenced except on the basis of facts assessed by a jury. His free-speech views genuinely reached the lonely pamphleteer and the dissident—witness his vote to strike down state and federal laws against flag burning.
Scalia was the anti-Brennan, too, in a different way. Where Brennan moved the Court in part through charm, Scalia used brute force of will. He did not compromise; he was unsparing of friend or foe when another justice strayed from what he saw as the path of correct interpretation. He dismissed an opinion by his fellow Reagan appointee, Sandra Day O’Connor, by saying it “cannot be taken seriously.” He attacked his own chief justice, John Roberts, for “faux judicial modesty.” He was merciless in his scorn for Anthony Kennedy, another Reagan appointee, dismissing his marriage-equality opinion as “mystical aphorisms of the fortune cookie.”
Even agreeing with Scalia had its perils. You had to be right in the right way, or you were still wrong. In a case called United States v. Bond, he concurred angrily from the bench (an exceedingly rare event in the history of the Supreme Court), charging that Roberts’s majority opinion “reads like a really good lawyer’s brief for the wrong side,” and was “entirely made up.” He was on their side, but they were still very, very wrong.
The New Yorker correspondent Margaret Talbot once wrote that a Scalia opinion was “the jurisprudential equivalent of smashing a guitar onstage.” But if they were not always models of decorum, Scalia’s opinions were fiercely effective in reaching a public beyond the world of lawyers and courts. For many ordinary conservatives, Scalia became a hero because he spoke of their own fears and frustrations in language they could understand.
In doing so, it must be said, he wrote or said things that scarred the objects of his wrath—not his fellow justices, who seemed to take it in good fun, but relatively powerless outsiders like prisoners, racial or religious minorities, or gays and lesbians. Considering a 1994 appeal by an inmate facing execution, he detailed the brutality of the crime. “How enviable a quiet death by lethal injection compared with that!” he concluded. Time has not been kind to his ferocity: The inmate was later shown to be innocent and freed at last.
When the Court struck down anti-gay sodomy laws in 2003, Scalia dissented: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.” The reference to scoutmasters and teachers echoed popular fears of gays as child molesters and predators. In oral argument in the pending case of Fisher v. University of Texas, he mused aloud that African American students might do better at “lesser schools” and that perhaps the University of Texas “ought to have fewer” black students. It was a distortion of a serious theory of college admissions; it made headlines; and the words—uttered from the bench of the same Court that decided Brown v. Board of Education—brought gasps in the courtroom and pain in many who read him.
In all, then, there is much in his legacy that I find somber. But as he passes from the scene he dominated, all should freely admit that his was a triumphant life, lived on its own terms and faithful to its own stern moral code. He fought for what he believed, and he leaves behind a world of law and constitutional interpretation forever changed.
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