The Legacy and Controversy of Justice Scalia

America never seems to pay attention to the Supreme Court Justices as individuals unless they are being appointed or dying.

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Scalia’s picture here is, much like his political views, aligned to the right of center.

Appointed by Reagan 30 years ago, Antonin Scalia became a token conservative Justice. According to law professor Kate Shaw, “He was a towering intellect, especially well known for his advocacy of a method of constitutional interpretation known as originalism, which holds that interpreting the Constitution requires close examination of the original meaning of the Constitution; that is, its meaning at the time it was drafted and ratified.” His reasons for doing so were twofold: He was a self-proclaimed conservative, and his philosophy of law relied heavily on his belief that lawmakers should write laws that are well understood for future generations.

The man left an impact that will always be remembered by millions. Sadly, his passing seemed to immediately spark more uproar about the implications of his empty seat than any reflection on his legacy. It seemed everyone either wanted to cheer that he was gone or shout “conspiracy theory!”

Our nation, the same one that votes for Presidents who appoint such leaders, communicated that within hours of a person’s death the first thing the only thing that should be on their minds is how to politicize the empty chair they left behind. If President Obama died of natural causes tomorrow, would we do the same? Would Republican voters immediately start posting celebration memes? Would Democrat voters immediately accuse the Republican party of hiring a Lee Harvey Oswald? Is that what we do to people in positions of great responsibility who handle jobs most of us wouldn’t be able to juggle?

So now I’d like to  reflect on his legacy and, most importantly, establish why it’s critical to have an ideological diversity of Justices on the Supreme Court. Scalia had a lot of critics, but even those critics often admired his wisdom and regard for the law.

Scalia’s methodology was simple: Interpret the Constitution as conservatively as possible, to preserve its values and prevent it from being subverted. To his supporters, this seems like an easy task. To his opponents, this is highly problematic. On the one hand, the document says what it says, and always has, and is our nation’s single charter for determining all law. On the other hand, it’s a document older than my great, great, great grandfather with some vague wording in places written by men who could hardly anticipate some of the issues we face today.

To Scalia, having a conservative interpretation of the Constitution wasn’t just about taking it literally. It was also about representing values that today we call “conservative.” No matter what, the man could not avoid associating certain interpretations with the constituency of his own political leanings. In other words, he was selected by Reagan for a reason, just as each justice is selected by their president for a reason–he was conservative. Typically speaking, you can expect any president to select a justice who will interpret the Constitution the way they prefer. Though it’s not supposed to happen, it’s a natural inclination. The nation have a say in the appointment of Justices, in that they vote to elect the person who will appoint them.

Justices are not supposed to “be political,” and are supposed to be neutral from politics. But how do you do that when you’re passionate about an inherently political institution? This is the business of The Constitution, the government, and the law. One could say any good politician is one who is passionate about protecting what their country is all about, and this will be based on their opinion. Assuming they aren’t voting on anything in exchange for money or power (all the rage these days), political leaders function on the basis that they are experts in and passionate about the fundamentals of our country as they understand it. They will bring their opinions to the table, always.

Scalia was always one to point out that his fellow justices were, in his words, “too political,” favoring certain interest groups in their rulings. This made him an important member, even when his claim was either exaggerated or hypocritical. He was political in his own way, and so were they.

As far as his rulings on various decisions—some I agree with, others I don’t. But regardless of those rulings, his was a type of personality that was much needed in the past 30 years. It’s not about what he would vote for, but how he would check and balance his fellow court. If you are so liberal you see him as a crumedgeon, let’s face it: Such a team needs a resident curmudgeon. If I’m going to have a team who interprets how to apply The Constitution, I would want at least 1 out of 9 of them to be someone who will always interpret it as literally and conservatively as possible, even when I disagree with him, and share that rationale with his colleagues. “The Constitution was not meant to facilitate change,” he would say. “It was meant to impede change.” I’d like to have one guy on my team who thinks that way, to keep me from getting carried away with my desire for change. I want someone with that philosophy to keep me in check. Scalia stood strongly for preventing any one branch, including his own, from exercising the powers of another. Granted, at times, he gave more power to the executive, but on the basis of the law, not whoever was President.

Scalia stood for things a lot of American’s didn’t, mostly liberals and progressives. He opposed a handgun ban in D.C., opposed affirmative action, opposed habeas corpus appeals for captured enemy combatants, opposed the right to commit abortion, supported the death penalty, challenged Miranda rights, voted that corporations had constitutional rights, and consistently took the side of states’ rights over federal authority. Of course he was controversial. But that’s the nature of these court rulings. Remember that one of the SCOTUS’s primary jobs is to make a final ruling on court cases that have been endlessly challenged. The job entails dealing in controversy. He didn’t just represent the views a large chunk of conservative Americans. He defended them very well. If he had merely preached about what ruling reflects the values of conservative Americans, he would have been a horrible justice. Rather, he consistently pointed back to the Constitution itself for justification of his take on a case. To Scalia, even if an action was disgusting, if he thought the Constitution made you free to do it, so be it.

Scalia’s personality was also an asset of the SCOTUS. His witty dialogue and writing not only applied a critical wisdom to court discussion, but also attracted citizens to the legal process. Without being as flamboyant or crass as clowns like Donald Trump, Scalia knew how to engage the nation in political debate by appealing to the lowest common denominator while still maintaining a sharp, critically insightful eye for law. He kept both the court and the nation engaged in national controversy without making it into a rodeo. One of his best friends was Ruth Bader Ginsberg, a liberal justice he frequently disagreed with. He acted as a kind of glue that held the “team” together, a reminder that they were all working on the same team. He didn’t take himself too seriously, but he sure took the law seriously.

As Dahlia Lithwick observed, “Scalia [didn’t] come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle.” On a panel of professionals inclined to show neutrality through a face of ambiguity, maybe it’s necessary to have one person who consistently takes a typical stance, a “devil’s advocate” against the majority. And although he has been known for his dissents, he has actually voted concurrently more than any other justice.

Perhaps that’s what was most admirable about him, that he treated his opponents with the utmost respect, and yet never shied away from challenging their ideas. As he said on 60 Minutes, “I attack ideas; I don’t attack people. And some very good people have some very bad ideas. If you can’t separate the two, you gotta get another day job.” It’s a lesson we all could learn: Don’t demonize people. Behind any irrational idea is a large number of well-intended people who just need to listen to reason. You might be one of them, and I respect you enough to give you my strongest reasoning.

While he may have been stubborn, Scalia would sometimes defend a practice as Constitutionally legal, such as burning the U.S. flag, no matter how much it disgusted him. Every justice, like any judge and any juror, must draw on everything they know, believe, and value in order to make their decisions. Scalia didn’t pretend that wasn’t the case. Even when he fully detested an act of free speech or sexual behavior, if he believed the Constitution protected it, he would vote on that principle. He was a man aware of his own private views of what was moral and acceptable, but he made a point of looking first to the Constitution when making a ruling. His open example led citizens to do the same. He urged conservatives, and liberals also, not to say “I think this is abhorrent so it should be illegal,” but rather, “I think the Constitution forbids it, so it should be illegal.” In this way, he even surprised the nation with some of his rulings, such as when he voted against limitations on internet pornography, and and violence in video games, on the grounds that they were considered free speech.

Now that Scalia is gone, his absence is felt on the Supreme Court. And yes, his absence has obvious political implications, particularly in an election year. I chose to wait at least a week to write about this, because I think he would want a nation that puts “we the people” first to value him as a person more than a job. His was a tough job, and we shouldn’t pretend that it’s easy. You’re tempted to interpret the law to reflect the way you want the nation to function, when in actuality it’s your job to interpret the law based on how you think it was written and how it should best apply to our times.

His greatest asset was also his greatest flaw: His opponents continually pointed to examples like slavery as a challenge to his interpretive philosophy. For a hundred years,”All men are created equal” apparently only meant white men (and white women, pretty much). If we always passed laws based on what the founders meant, when would we have ever freed the slaves? For this reason I would always want a least one Ginsberg on the court, someone who helps us admit that the men who wrote this flawed charter were flawed people, and there are moments in history when we must amend the constitution to bend the law in a corrective direction. And even Scalia knew this. He knew without a doubt slavery is unconstitutional, but his progressive rationale for believing so exceeded the bounds of his narrow, traditional philosophy.

No matter what you thought of the man’s political leanings and court rulings, he should be respected as an elected leader who sought years of legal training and practice, earned tremendous respect, and was appointed to a difficult position of leadership. He presided over the nation’s most controversial cases, provided a rationale for their rulings that could be scrutinized by the entire nation, interpreted and applied a 240-year-old charter, and examined the legality of the decisions made by Congress and the President, all the while trying not to be seen as too politically biased, especially knowing that the rulings of the entire Supreme Court are virtually permanent.

That is a lot of responsibility for someone who is supposed to be a powerful government leader without actually representing an actual political party or interest group. Scalia was a man who believed in standing for the Constitution as he believed the founders had meant it to be. If you’re going to say anything about the political implications of his seat’s vacancy, at least take the time to first honor his legacy of representing the Constitution and the values he believed formed it.

President Obama plans to select a replacement justice. If the Senate votes to turn down his choice, I hope it is on the basis of the selection itself, not as a measure to wait and see if a Republican President will select a judge in 2017. It fully lies within President Obama’s power to appoint a new justice in an election year, and with ten months left in his presidency, he has plenty of time to do it. The Constitution says so. And if that’s unclear, we could have asked Scalia to explain it.

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