With the death of Justice Antonin Scalia, the nation has lost a great man and a great judge—a man of deep and abiding religious faith and perhaps the most influential Supreme Court justice of the past fifty years. Whether or not one always (or even often) agreed with him, Antonin Scalia was the Colossus of the Constitution. His rigorous, relentless, fearless commitment to the original textual understanding of the Constitution almost single-handedly redefined the ethos of constitutional interpretation for our day, making an almost-lost orthodoxy new and fresh again.
Antonin Scalia was no defender of that sloppy sophism, a “living constitution.” The Constitution’s meaning was, for Scalia, fixed by the original linguistic meaning of its words and phrases, taken in historical and political context, at the time of their adoption by the People as part of their Constitution. Yet Scalia unfailingly made that original meaning of the Constitution come very much alive, with his lively writing and irrepressibly warm and colorful judicial personality.
Just a few months ago, Justice Scalia visited the University of St. Thomas School of Law in Minneapolis, where I teach. Scalia was his inimitable, charming, avuncular, vibrant, engaged self. He spoke briefly and informally at a lunch with faculty members and other guests, then gave an address to the student body followed by a question-and-answer period.
Justice Scalia had much to say of interest—both in his prepared remarks concerning the importance and distinctive characteristics of Catholic legal education, and the importance of such institutions remaining committed to those core principles and values, and especially in his responses to student and faculty questions. The event was public, and Justice Scalia was unreserved—so I don’t feel like I’m telling tales out of school. I am not working from a transcript, but from my quickly hand-scribbled notes on a scrap of paper.
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Scalia was saying interesting, memorable things and I simply had to take them down. I stuck the scrap in my wallet and found it just a few days ago (buried among receipts), after hearing of Scalia’s death. These are not at all Scalia’s “last words,” but they are in many ways closing arguments and admonitions: about law, about politics, about life. I don’t warrant the quotations being perfectly accurate. But they will be close, and I assure you I got the gist of his points.
Fidelity to the Constitution, Above All
Scalia, both in the smaller group lunch and in his presentation to the law school as a whole, emphasized that his Roman Catholic faith was essentially irrelevant to anything he did in his capacity as a judge—aside from the fact that it required him to act with integrity, honesty, and fidelity to the task to which he had sworn his commitment. This was not at all to deny his faith. It was simply to affirm, he said, that his task as a judge was to faithfully interpret and apply authoritative legal texts in accordance with their original meaning—not to propound his views of correct morality or public policy.
In the lunch session, he was asked a question about his views on “natural law.” He said, wittily, that he practices “American law.” Natural law might well be something appropriately taken into account by legislatures but not by courts. Whatever he might think as a Catholic citizen was one thing; his role as a judge was another.
In illustrating this point, he used an example he has often used before. He would “no more hold” that states are required to ban abortions than he would hold that they are prohibited from banning abortions. The Constitution simply said nothing about the issue. It didn’t embrace his Catholic view of the humanity of the unborn any more than it embraced a constitutional right to kill the unborn.
I have questioned the certainty with which many legal conservatives hold this view, in academic writing. I think that the question of the constitutional legal meaning of “person” is more difficult than Scalia allows. There is a strong case to be made that the original meaning of “person” in the Fourteenth Amendment embraces all living human beings. Historical evidence from Blackstone supports the understanding that legal personhood is present at the point when a separate human life can be detected as living in the womb and early American authorities embraced Blackstone’s view as authoritative.
But the key point here is not this intramural difference of opinion as to what original meaning may or may not require. The key point is that Scalia never let his personal or political or moral views drive his constitutional interpretation.
The Future of Religious Liberty
Scalia’s answers to student and faculty questions were the most interesting.
What rights did he foresee the Court protecting in the future? What types of arguments could one expect to see in future cases? “Argue whatever you like!” he chided. Referencing Obergefell v. Hodges’ creation of a constitutional right to same-sex marriage, then just a few months old, Scalia said it followed that anything was arguably a constitutional right. “If that is a constitutional right, what in the world is not?”
What would be the consequence of Obergefell for religious liberty? Would claims of conscientious objection to compelled participation in or support for same-sex marriage ceremonies be governed by Scalia’s 1990 opinion in Employment Division v. Smith? Under Smith, if a law is neutral and generally applicable, but has the effect of prohibiting sincere religious exercise, the Free Exercise Clause of the First Amendment supplies no constitutional claim for exemption from the general rule.
Or would Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC point the other way? Under Hosanna-Tabor, government may not interfere with a church or religious organization’s decisions with respect to internal governance, leadership, and doctrine—even by way of neutral civil rights or employment discrimination laws.
Scalia, somewhat surprisingly, needed reminding of what Hosanna-Tabor had held—which may indicate his sense of its centrality. He then concluded (disappointingly) that Smith would govern laws concerning the performing of same-sex marriages, even by churches. He anticipated that there might soon come a day when churches performed religious marriages only, without civil law consequences, and couples would need to go to the courthouse for a legal marriage.
His Thoughts on the Supreme Court
Scalia further remarked that the Supreme Court had no special claim of supremacy in determining questions of constitutional meaning. “I don’t swear a special oath that makes my views superior,” he said, to those of Congress, presidents, or state government officials. While “ordinarily,” on questions of law, the decisions of the justices would control, this was not invariably the case and should be less the case where the Court engages in lawless policymaking. “In time of crisis, they [political actors] can tell the Supreme Court to go fly a kite,” he quipped. Moreover, “to the extent ‘the law’ becomes less and less” a matter truly of law, but simply of justices’ policy preferences, such decisions become “less and less entitled to the respect and acceptance of other branches of government.” The Supreme Court is not the supreme branch of government, and not supreme over the Constitution. There are limits.
What did Scalia think of Citizens United and popular criticism from the left of that decision? He thought criticism of the decision downright irrational. “Corporations have no free speech rights? Are you crazy? The New York Times? CBS News?” He thought the position that groups, organized as commercial entities, could have their speech restricted absolutely ludicrous—unserious, unprincipled—and dangerous: “If you think you’re going to have a fair electoral system by letting incumbents decide who can give money to whom, you’re out of your mind!”
Perhaps relatedly, in answer to a question about the most important cases he had sat on, Scalia emphasized the Constitution’s structure—separation of powers, checks and balances, federalism. It was the structural cases that really mattered to Scalia. The USSR’s Bill of Rights was “much better than ours,” he ventured. “What’s made the difference with us is our structure. It is structure that preserves our liberty,” he emphasized. Interestingly, he thought that the U.S. Term Limits v. Thornton case (in which the Court held unconstitutional, by vote of 5-4, state-law imposed term limits on a state’s own members of Congress) was “without a doubt the most important case I’ve sat on” and a “hard case.” (Usually, he said, there was “no correlation between the importance of the case and its difficulty.”) Scalia joined the dissent in Term Limits. He would have upheld the states’ authority to impose such limits. Scalia said—with a smile—that he dissented a lot.
Speaking of dissents, why did Scalia write them? What good do they do? “Why write the dissent? I’m writing for you guys,” he smiled at the student. “If I write it I know it will be in the casebook, because the professors need something to talk about.” Scalia wrote dissents because he believed them to be important—more for the purpose of stating what he believed to be true principles of law and attempting to persuade the future. It also gave him more freedom than he had when trying to craft a majority opinion. “You don’t want to join my dissent? God bless you. Don’t join it!”
An awkward question at the time that seems positively poignant now: So many of the justices are getting old. What did he think about the likelihood of future appointments to the Court? Scalia responded in stride—and with seemingly prophetic insight. Presidents, when making appointments, tend to ask, “How will this benefit me?” He seemed to call for more serious consideration of the Constitution in making and confirming—or not confirming—nominations to the Supreme Court. (This despite the fact that, in 1986, Scalia successfully dodged all substantive questions—the last nominee to stonewall the senators completely.)
Historically, Scalia grumbled, “Republicans have not cared that much.” In marked contrast, “Democrats care.” They have an explicitly pro-Roe v. Wade litmus test. Republicans’ litmus test is “‘We do not have a litmus test’! Now who’s going to win that?!” Republicans’ abdication of constitutional principle and debate made absolutely no strategic sense to Scalia.
Seeing What’s in Plain Sight
I close with a compelling personal story Scalia told at the smaller lunch gathering. The question to which he was responding had to do with his education—Xavier High School in New York City, Georgetown as an undergraduate, and Harvard Law School. Unfortunately, I forget where it occurred (I think Xavier, but it might have been Georgetown, in a different era), but here is the incident he retold.
Scalia was finishing his grueling oral exams in history before a fearsome panel of three, including the Jesuit head of school. After nearly an hour, the president or chair of the committee, a priest, said, “One final question, Mr. Scalia. What in your opinion is the most important historical event of all time?”
“I’ve made it!” Scalia recalled thinking, with this absolute softball of a concluding question. He didn’t remember what answer he gave—some pompous, pretentious, seemingly intelligent ramble. But it didn’t matter. He was home free; any answer was as good as any other, of course.
“‘Wrong, Mr. Scalia,’” the priest pointedly told him, bringing the young Scalia up short. (You mean there is a right answer?) “‘The Incarnation.’” There was no other historical event of equal importance.
Scalia, telling the story, slapped his palm against his forehead. How could he have overlooked what was most fundamental? It was a lesson, he said, he’d never forgotten in more than half a century.
The story, and Scalia’s recounting of it, says much about Scalia’s life. As smart and clever as he was (at 19 or 79), he recognized that some of the most obvious and important truths of life are in plain sight for all to see.
Scalia was a man of faith and a man of reason. He grounded that faith in what he regarded as historical events—in objective reality, not mere subjective beliefs or personal preferences. And he grounded his reason, in matters of law and in matters of life, in sound first premises and sound deductions from them.
Antonin Scalia lived greatly and will be greatly missed.