Throughout his three decades on the Supreme Court, Antonin Scalia was invariably described as a “judicial conservative.” This was, of course, an accurate label, at least insofar as it distinguished his philosophy from the “living Constitution” school of thought espoused by his close friend Ruth Bader Ginsburg. Yet it’s highly misleading to suggest that Scalia viewed the Court as a vehicle for conservative policymaking. In fact, he believed that its rulings should be grounded in the text and history of America’s founding document and legal statutes, as opposed to the value judgments of nine justices. Whether he himself preferred a given policy outcome was irrelevant; all that mattered was whether the Constitution or the law demanded it.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
It was, like so many of his opinions, both brilliantly written and ruthlessly logical, reminding us that Americans could support gay marriage without supporting its imposition by judicial fiat. As former Tenth Circuit appellate judge Michael McConnell notes in the Wall Street Journal, the defining characteristic of Scalia’s jurisprudence was its robust defense of democracy — “allowing Americans to decide contentious questions for themselves, where the Constitution is, honestly read, silent.” Admittedly, this philosophy often supported outcomes favored by conservatives; but sometimes it did not. Those who considered Scalia a partisan hack either failed to read his opinions or failed to understand them.
“Justice Scalia was undeniably conservative,” writes McConnell, “but he joined with liberals to demand due process for Guantanamo detainees, to protect flag-burning (and cross-burning), to give new teeth to procedural protections for criminal defendants, and to invalidate a law against violent videogames (among many other examples). He championed the authority of regulatory agencies to interpret their operating statutes, even when Democrats controlled those agencies. He insisted that all executive power must be exercised by a unitary president, even when that president was Bill Clinton or Barack Obama. Bush v. Gore? His detractors forget that the key holding in that case was joined by seven of the nine justices.”
Scalia was a devout Catholic, which obviously influenced his personal beliefs on matters such as abortion. But the idea that he sought to transform the Court into a “theocracy” is just laughable. “Above all,” writes Emma Green of The Atlantic, “he was committed to a literal, originalist interpretation of the Constitution, along with strict attention to the texts of federal and state laws. His views didn’t always align with those of the Church, and he didn’t always side with people making religious-freedom claims.”
If we read Scalia’s partial concurrence and partial dissent in the 1992 case of Planned Parenthood v. Casey — a case in which the Court reaffirmed the “central holding” of Roe v. Wade — we do not hear the voice of a theocrat, but the voice of a devoted constitutionalist. Indeed, his opinion in Casey, much like his dissent in last year’s historic gay-marriage case, argued that social-policy debates unmentioned in the Constitution should be decided democratically, by the people and their elected representatives, rather than by a Supreme Court diktat. As Scalia explained:
A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example — which entire societies of reasonable people disagree with — intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution.
That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected — because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.
Several years later, in the case of United States v. Virginia, the Court declared that the Virginia Military Institute’s male-only admissions policy violated the 14th Amendment. Scalia was the lone dissenter (Justice Clarence Thomas recused himself because his son was attending VMI), and he once again emphasized the importance of democratic debate and constitutional fidelity. His opening paragraph read:
Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all men’s military academy — so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States — the old one — takes no sides in this educational debate, I dissent.
A profound thinker, a gifted writer, and a true giant of American jurisprudence, Antonin Scalia left an incomparable mark on the institution — and the country — he served. RIP.