Commentary: Scalia in history — a first draft
on Feb 14, 2016 at 1:18 pm
History will be kind to Justice Antonin Scalia — if the future fully appreciates his scholarship, his inventiveness in legal thinking, and his beguiling cleverness with words. It will not remember him well for his air of superiority, the sting of his rhetoric, his frequent disdain for collegiality, his exaggerated estimate of himself as a comedian and thespian.
Within the Court and among the panoply of past Justices, Scalia was as much the originator of a school of legal philosophy as Louis Brandeis, as gifted a legal craftsman as Robert L. Jackson, as influential an intellectual as John Marshall Harlan (the second), as path-breaking as Earl Warren.
But he also would become the most polarizing figure on the Court since George Sutherland, as impervious to changing times as Samuel Miller, as condescending as Felix Frankfurter, as self-absorbed as William O. Douglas, as controversial as Roger Taney.
In short, history will find him a deeply puzzling, but profoundly interesting, paradox. He was, as journalist and author Joan Biskupic anointed him, an “American Original.”
If there is a truly enduring part of his legacy, it surely will be his role as the patron saint of modern legal conservatism, and especially the branch of it that believes that the Constitution was essentially embalmed in 1789 (or when an amendment was added), preserved for adulation and imitation but almost always a bit musty and antique.
Faced by a claim of invasion of privacy by new technology, for example, he would decide the issue with a thoroughly dated version of the common law of trespass, from the age of the horse-drawn carriage. Indeed, he adored the common law as Holy Writ, and delighted in tracing legal origins back to the obscurity of Shakespearan England, to Coke and Bacon — and even before then.
Latin legal phrases would be dropped, not casually, into the depths of an opinion. If he could have gotten by with it, he almost surely would have been tempted to use legal French, as legal writers of the 1600s preferred. It was as if he was a figure out of the remote past, certain that prior wisdom is always superior to trendy modernity.
He was often called an originalist, a guardian of the Founders’ eighteenth-century vision, but he operated more often as a textualist. That is, he would take words from the Constitution, steep himself in the dictionaries of the era, and divine the unchallengeable meaning of the text. A fine example of that was his monumental gift to gun owners, his astonishing discovery in the Second Amendment’s words of a personal right to have a gun.
Before there was a Tea Party, he was persuaded that the country had walked away from ancient virtue, guided by a bloated bureaucracy of gnomes uncaring about what The People want, or are really like. He wanted passionately to be thought of as a foe of judicial supremacy, although he was not entirely free of temptation to practice it (as, for example, he did in revolutionizing the meaning of the Confrontation Clause of the Sixth Amendment).
He was not as influential as his colleague Anthony M. Kennedy has been in revitalizing the sovereignty and dignity of state governments, but he certainly shared the aspiration to turn public policy-making back to a point closer to the people.
For those who knew Antonin Scalia personally and privately, he was the warmest friend, the most devout in his faith, the delight of any dinner party, a steady partner to his wife, and a proud and loving parent of his children.
He took very little of those qualities to the bench with him, however. When he was not displaying his biting wit, he grew impatient with what he often treated as the gropings of his colleagues or the stubbornness of counsel he saw as resisting the obvious — his view.
He sat back and low in his high leather chair, but would abruptly lean into his microphone to excoriate an attorney or another Justice. He would throw in cute asides, or obscure precedents, and he almost always turned oral argument into entertainment (at least for the legal cognoscenti). His style was largely lacking in judicial reserve, and that was entirely intentional.
But there was nothing in his conduct at oral argument that would match the audacity — and the frequent dyspepsia — of his written opinions. One can easily imagine himself sitting in his chambers, suddenly being seized by a phrase or a word not in everyday use (like “argle-bargle”), neatly capturing the disdain he was feeling toward a majority that he would have been embarrassed to join. He recently said he would rather put a bag over his head than join a Kennedy majority opinion.
Far different from the Justices of old, who would seldom be seen outside the courthouse (and certainly never astride an elephant in an operatic performance), Scalia adored the public stage and the worshipful audiences he drew, whatever his message. He was mostly kind to his public critics, but he seemed never to allow his thinking to be altered by them.
When enough time has passed that the vividness of his personality has faded, and what remains is the deposit of an incredibly rich life in the law, history’s judgment may well focus more on his intellect than on his viscera, and he will be thought among the greatest.