The University Bookman


Winter 2016

Antonin Scalia (1936–2016)

Stephen B. Presser

An era ended today with the passing of Justice Antonin Scalia. Scalia, a 1960 magna cum laude graduate of the Harvard Law School and a Notes Editor for the Harvard Law Review, taught for a while both at the University of Virginia and at the University of Chicago, visited for a time at Georgetown University in 1977, and then had a visiting year at Georgetown and Stanford (1980–81). He was, of course, best known as the most visible member of the United States Supreme Court. He was the senior Associate Justice, having been appointed by Ronald Reagan in 1986. Remarkably, at that time, the Republicans controlled the Senate, and Scalia’s nomination sailed through the Senate Judiciary committee by a vote of 18 to 0, and then through the full Senate by an incredible vote of 98–0. This may have been a tribute to the man’s unique jurisprudential qualities, or may simply be due to a realization that it was politically incumbent on the Senators not to stand in the way of the first Italian-American nominated to the Court. Scalia, for many years a lonely dissenter, gradually became the intellectual leader of the Court, and one of the two Justices (Clarence Thomas was the other) most visibly committed to a jurisprudence where the original understanding of the United States Constitution was the only acceptable guide to its meaning. He enlivened arguments before the Court with his brilliant and caustic wit, and was a champion eviscerator of unwary or unprepared advocates.

Scalia was prepared to allow some technological changes (affecting, for example the rights of criminal defendants) to result in expanded Constitutional protections for American citizens, but he condemned the proliferation of newly created restrictions on the police power of the states in such as areas as marriage, sexuality, and abortion. He was a firm believer not only in the original understanding of the Constitution, but also in the wisdom of the Framers’ carefully restricting the federal government to its limited and enumerated powers, and in their insight that Courts should be limited to interpreting and not making the law. As Scalia explained in a cogent slim volume in 1997, “[M]any believe that [the Constitution] is, in effect a charter for judges to develop an evolving common law of freedom of speech, of privacy rights, and the like. I think that is wrong—indeed, … I think it frustrates the whole purpose of a written constitution.” After the record of the Warren and Burger Courts, it is, of course, a nice question whether this view, that judges should not make law, any longer accurately reflects reality, but there is no doubt that Scalia’s views have traditionally been embraced by Republican candidates seeking to win the Presidency, such as the successful candidate (although perhaps due to the intervention of a Supreme Court majority that included Scalia) George W. Bush, and the unsuccessful John McCain and Mitt Romney.

In an increasingly politically correct era Scalia refused to conform, and when he encountered the kind of bloviating too common on the nation’s highest bench, he felt it his duty to expose it. In the Court’s recent Obergefell decision, finding somehow in the Constitution’s due process and equal protection clauses a hitherto unrecognized right to single-sex marriage, Scalia let fly against the language used by the majority to support its unsupportable conclusion. Scalia said of the majority’s decision, “The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.” Scalia then noted that “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He never did, and now he never will.

Scalia’s views were frequently derided in the American legal academy, where most professors adhered to “legal realism,” a philosophy that gained prominence in the 1930s, which held, essentially, that judges were free dramatically to change the law to meet the needs of the times, and, in recent years, the philosophy of critical legal studies, which all but affirmed that all law was simply politics in formal dress, which amounted to the same thing. Many of Scalia’s liberal critics had a difficult time seeing him as anything but a partisan, and a self-defeating one at that, since he was so often in dissent. It is clear, however, that Scalia may have been aiming to influence the future as well as his own time, and Scalia could build a plausible case that the principal values of his jurisprudence—adherence to the rule of law and limiting legislation to the elected representatives of the sovereign people—were what made America great. The Federalist Society, a group of lawyers and law students that Scalia helped found, a group now numbering in the thousands, promulgates Scalia’s ideas of limited Constitutional government, the primacy of the states as law makers, and the clear separation of the legislative, executive, and judicial powers. The Federalist Society’s strong organizational and lobbying efforts have had an impact in the selection of federal judges and in shaping the media’s view of the judicial task. If Scalia’s opinions and his arguments with his colleagues did not always carry the day on the Court, they may yet with a Federalist Society–influenced group of future Justices.

Scalia was something of a throwback to eighteenth-century views that it was impossible to separate order from law, law from morality, and morality from religion. He was a committed Catholic, and understood that America’s religious tradition was profoundly important to its survival as a cohesive civilization. Some knew him as the “Rock Star” of One First Street, and Scalia reveled in taking his conservative judicial message to the public; there was even a one-act opera, Scalia/Ginsburg, which featured two actors representing him and his friendly jurisprudential foil, Justice Ruth Bader Ginsburg. He himself was a class act, and such a performer is unlikely to grace the Court again.  

Stephen B. Presser is the Raoul Berger Professor of Law Emeritus at Northwestern’s Pritzker School of law, the legal affairs editor for Chronicles: A Magazine of American Culture, and the author of the forthcoming Law Professors: Imagining American Law, which will include a chapter on Antonin Scalia.

Posted: February 13, 2016 in Essays.

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