The loss of Justice Antonin Scalia is huge–for his family, for the Supreme Court, for American jurisprudence, for constitutional fidelity, and for the country at a crucial time.
Here was a man who was larger than one Justice among nine, for the dynamic he represented with his intellectual strength and depth and his personality permeated the room and the deliberations of the Court as no other in many decades. It has been said that he was the embodiment of the conservative revolution that began with Ronald Reagan and this is no doubt true in the sense of his influence on turning Court deliberations away from what he called the “bad old days”. In his almost three decades on the Court, he transformed the tradition of oral arguments and restored textual analysis to its rightful place, while demonstrating that humor, good will, and faith have a role to play even in the most intense and contentious deliberations.
His guiding judicial philosophy is probably best characterized by a quote in his dissent in Planned Parenthood v. Casey in 1992: “…if in reality our process of constitutional adjudications consists primarily of making value judgments…….then the issue is properly one for democratic debate……value judgments should be voted on, not dictated”.
Sanford Levinson, professor of law at UT-Austin, in an article shortly after Scalia’s death, was critical of him as what he calls the Court’s “trash talker” and says that the coarsening of our public dialogue will be the part of his legacy that will stand out. I couldn’t disagree more strongly. This was a man of good will and good humor who reached out to those he most disagreed with on the Court. His close personal relationship with Justices Ginsberg and Kagan have been widely reported and he had the reputation of requiring that his clerks always included bright and capable liberal thinkers to challenge him on points of law and ideology. No, Professor Levinson, Justice Scalia was not the source of our problem with coarsening civility, nor was the Supreme Court as an institution. This coarsening was well underway before he arrived on the Court and grew out of the extreme politicization of the judiciary and the attacks by the left progressives and their fellow travelers on our constitutional foundations in the “bad old days” that he began to reverse.
He will be very difficult if not impossible to replace and I can assure you of this–the 2016 election moved by a big leap in seriousness with his death, particularly for Republicans.