It’s a distressing sign of the times that when Supreme Court Justice Antonin Scalia passed away last week, we barely took a minute to appreciate the man, his contributions and the depth of our loss. Instead, we became instantly embroiled in a political whirlwind surrounding the appointment or non-appointment of his successor.
For me, it was difficult not to feel a sense of camaraderie with Justice Scalia. We shared a Sicilian heritage, a Roman Catholic upbringing and education (high school), as well as a steadfast love of the law, the English language and the Yankees. In “American Original: The Life and Times of Supreme Court Justice Antonin Scalia,” author Joan Biskopic points to something else we both shared: We never let our political or legal philosophies interfere with our friendships.
His commitment to placing friendship over ideology was evident in two major ways: First, he had a policy during his time on the Supreme Court of removing any contentious part of any written opinion if a colleague requested it, and second, his best friend was liberal justice Ruth Bader Ginsburg.
In their book “Notorious RBG: the Life of Times of Ruth Bader Ginsburg,” authors Irin Carmon and Shana Knizhnik describe how enchanted Justice Ginsburg was with Scalia from the moment they met decades before they became colleagues on the Supreme Court. Upon hearing him speak for the first time, Ginsburg remarked: “I didn’t agree with a word he said, but I loved how he said it.” Later, she was to comment: “We are different, we are one…different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.” Affectionately, she added: “From our years together at the D.C. Circuit, we were best buddies.”
When Scalia was appointed to the Supreme Court by President Reagan in 1986, it was the president’s hope that he would be to the conservatives on the court what Justice William Brennan was to the liberals during the Earl Warren years. To Reagan’s delight, he was that and more. His charisma, intellectual muscle and sheer power of personality consistently brought back into the court’s decision making conversation the 18th century principles of “originalism” and “textualism.”
Scalia’s approach proudly affirmed affectionately that the Constitution was a “dead” document. Judges, he suggested, should add nothing to it but rather base all their decisions on the public meaning of the words of the document or its amendments as understood by the American people in the state ratifying conventions. For Justice Scalia, to perceive the constitution as a “living document” would allow a judge to decide how the document is to grow and what new rights will spring forward. The result is that the Constitution would no longer be enduring and unchanging, which for this justice, were qualities that should never be compromised.
Despite my affection for Scalia the man, I always felt his judicial philosophy was specious at best. What makes more sense to me is the reasoning of his leading intellectual opponent on the Court,
Justice Stephen Breyer: “The hardest problem in real cases is that the words ‘life,’ ‘liberty’ or ‘property’ do not explain themselves. Nor does the freedom of speech say specifically what counts as ‘the freedom of speech.’” Breyer’s approach is to first search the Constitution for what he terms “ancient values.” Then, apply reason and practicality to the issue at hand with these values in mind.
In essence, Breyer’s retort to Scalia’s “originalism” is that it asks the wrong question. “The question is not: Did the Founders at the time think about ‘blank’ (whatever particular issue the Court is now considering)? The question is: Did the Founders intend to restrict the scope of the Constitution only to the forms...then prevalent…or did they intend the Constitution to apply, where appropriate, to somewhat changed circumstances”?
For Breyer and all of us who believe the Constitution to be a “living document,” being true to it means: “using its timeless principles to address new and unforeseen situations.” A perfect example is trying to wrestle with the issue of preserving privacy in an age of smart phones—as the court did in Riley v. California. “Freedom of speech and the right to privacy are constantly shifting, as modern forms of communication flourish…Trying to apply this Constitution—with those values underlying the words—to circumstances that are continuously changing is not something that can be done by a computer,” Breyer asserted. He continued: “Neither of us thinks that. No one thinks that, and therefore it calls for human judgment.”
Justice Scalia—who loved robust exchanges of ideas—often sparred in public with fellow Justice Breyer and was quick to explain: “I have no problem with applying ancient values as they were understood at the time to new modern circumstances. Originalism doesn’t mean that the radio is not covered by the First Amendment, but what originalism suggests is that as to those phenomenon that existed at the time, the understanding of the society as to what the Constitution prohibited—at that time—subsists.”
The fact that, of the remaining Justices, only Justice Thomas subscribes to Scalia’s theories does not diminish his legacy one iota. Thousands of young lawyers who have been inspired and taught by this brilliant jurist will undoubtedly rise through the judicial ranks perhaps even some day taking his place on the Supreme Court. Regardless of whether we agree with Antonin Scalia’s judicial philosophy or not we must take a moment to respectfully acknowledge that for sheer brilliance, charisma, causticity and undeniable élan vitale, he was clearly one of a kind.
Rest in peace, Justice Scalia.
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