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Antonin Scalia
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Diane Rehm's Brilliant Examination Of Antonin Scalia's Legacy
And The Future Makeup Of The SC
http://paxonbothhouses.blogspot.com/2016/02/diane-rehms-brilliant-examination-of.htmlPostscript:
Antonin Scalia, 1936–2016
BY MARGARET TALBOT
I saw Justice Scalia speak a number of times, when I was profiling him for the magazine, in 2004 and 2005, and the question he hated most was how he would have ruled on Brown v. Board of Education. Scalia was committed to an originalist approach to jurisprudence, but a literal reading of the Fourteenth Amendment’s guarantee of equal protection would not seem to require a ruling to desegregate schools. The famous ruling against state-sponsored segregation came out of an approach Scalia loathed: extrapolating from underlying values expressed in the Constitution rather than treating that document in a manner both reverent and rigid. It was that idea of a “living Constitution”—how Scalia disdained the phrase!—that made Brown v. Board possible. Scalia, it seemed to me, knew that and was chagrined about it. “Waving the bloody shirt of Brown again!” he’d complain when people brought it up.
When I met with him, Scalia told me he’d have voted with the majority on Brown—but he didn’t explain why. In a public conversation with Justice Stephen Breyer at the University of Arizona in 2009, Scalia broached but did not answer the question, noted Adam Liptak of the Times. Instead, he said he would have voted with the dissent in Plessy v. Ferguson, the 1896 case that Brown overruled. To law students who pointed out that it was the flexible, not the originalist approach that enabled Brown and other civil-rights breakthroughs, he’d reply that “Even Mussolini made the trains run on time,” or “Hitler developed a wonderful automobile. What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.” In short, he never did reconcile originalism with Brown. And any legal philosophy that cannot be squared with that moral high point of the modern Supreme Court is fatally flawed.
In his questions from the bench and in his written opinions, Justice Scalia was sharp-tongued and memorable; his verbal output reflected an exuberant love of his work and a happy appetite for the thesaurus (“argle-bargle” and “jiggery-pokery” are among the synonyms for poor legal reasoning that cropped up in his opinions). But in recent years those opinions became even more vitriolic. Justice Scalia must have felt particularly helpless and frustrated at the steady march toward marriage equality. In his dissent in Lawrence v. Texas, the 2003 case striking down, as discriminatory, a law against sodomy, Scalia was prescient about its consequences: “If moral disapprobation of homosexual conduct” was no longer a legitimate state interest, “what justification could there possibly be for denying the benefits of marriage to homosexual couples?” This was clearly one case where Scalia would rather have been wrong. Last June, when the court issued its decision in Obergefell v. Hodges, upholding the right of same-sex couples to marry, he excoriated his fellow justices, “a select, patrician, highly unrepresentative panel of nine,” for violating “a principle even more fundamental than no taxation without representation: no social transformation without representation.” Yet the decision was not so far ahead of the American public as Scalia insisted: the Court was performing the vital judicial role of protecting the rights of minorities, but it was also, by 2015, reflecting the opinions of a majority of Americans who favored marriage equality.
I was inclined to grant Scalia points for consistency. His originalism did, after all, lead him on occasion to rulings he found personally or politically disagreeable. The example he liked to point to was his 1989 vote protecting a First Amendment right to burn the flag. “Scalia did not like to vote that way,” he told students at the University of Michigan, in 2004, playfully talking about himself in the third person. “He does not like sandal-wearing bearded weirdos who go around burning flags. He is a very conservative fellow.” But, other times, it seemed that his political preferences trumped his legal philosophy. In 2008, he wrote the majority opinion in District of Columbia v. Heller, in which the Supreme Court for the first time interpreted the Second Amendment as conferring an individual right to possess a firearm. Yet, at the time that the Second Amendment was drafted, militias, and not individuals, were the relevant entities. And the guns available were muskets, not handguns and assault rifles.
Still, for all my deep disagreements with Justice Scalia’s positions, I have fond memories of following him around. For one thing, he liked to engage and argue with his ideological opponents—with liberal law students, for instance, at his campus appearances. I met him once one-on-one, for an off-the-record conversation to confirm some of the facts I’d gathered about his life. In his chambers, he poured tea for me and asked me where I’d grown up, showing a graciousness I hadn’t expected.
Scalia’s friendship with his ideological nemesis Ruth Bader Ginsburg is well-known by now, and Scalia spoke warmly of it that day: their shared love of opera, and their custom of spending New Year’s Eve together with their spouses and various assortments of their children and grandchildren. (Scalia and his wife, Maureen, had nine children; the Justice once said that as good Catholics they’d played “Vatican roulette.”) “We’re very much family types, Ruth and I,” Martin Ginsburg, a tax attorney and famously devoted husband, who died in 2010, told me. “And so are Maureen and Nino.” I found my notes from that interview when I was going through my Scalia files this weekend, and saw that Ginsburg had also spoken of a time when he was in the hospital for a week. Scalia had been the only person outside his family to visit him there. I must have expressed surprise, because Ginsburg told me, “No, it wasn’t weird. I was glad to see him because Nino is so fun to talk to.”
I’ll lift a glass of wine (Scalia was fond of it) to those moments when human feeling transcends ideology, which do seem rather imperilled these days. But here’s another one, courtesy of Jim Obergefell, the plaintiff in the same-sex marriage case in which Scalia wrote that unrelenting dissent. In 2013, Obergefell and his partner of twenty-one years, who was dying of A.L.S., married in Baltimore, where same-sex marriage was legal. He brought suit because he wanted Ohio, where they lived, to recognize the marriage on his husband’s death certificate. In the end, of course, he won, over Scalia’s fervent objections. Nonetheless, this weekend Obergefell tweeted the following: “Thank you for your service to our country, Justice Scalia. Condolences to your family and friends.”
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