Well, a ton has been spoken and written regarding the passing of Supreme Court Justice Antonin Scalia. And there will be much more. The debate regarding the propriety of an appointment of a replacement during the current administration will probably soon drown out most folks’ memory of the man being replaced. That is unfortunate. So, I’ve combed the news and commentary sources that I typically frequent and came up with two articles which best capture my understanding of the man, his focus on the Constitution, and the role of the court. I hope you enjoy the articles and appreciate the service of Justice Scalia as much as I. The first is a piece by Dr. Albert Mohler which appeared at: http://www.albertmohler.com as: A Giant has Fallen – The Death of Justice Antonin Scalia and the Future of Constitutional Government. The second is an article by George Will which appeared in the Washington Post as: Why Antonin Scalia was a jurist of colossal consequence. RMF
A Giant Has Fallen – The Death of Justice Antonin Scalia and the Future of Constitutional Government
By Albert Mohler
“Presidents come and go, but the Supreme Court goes on forever.” So advised a man who ought to know, William Howard Taft. After serving as President of the United States, Taft went on to serve — probably more effectively — as Chief Justice of the United States. But, if the Supreme Court goes on forever, justices do not. Americans were reminded of this truth on Saturday when news broke that Justice Antonin Scalia had been found dead in Texas, where he had gone on a hunting trip.
The 79-year-old justice had served almost 30 years on the nation’s highest court and was by any measure one of the most influential justices in that court’s history. Indeed, Antonin Scalia is almost surely the most influential justice to sit on the Supreme Court in many decades. The loss of his influence, as well as his his crucial vote, is monumental.
Scalia’s significance lies in his commitment to originalism, also known as textualism — the belief that the Constitution of the United States is to be read and understood and applied in keeping with the language, syntax, and vocabulary of its text as understood to be intended by the framers. This was how the Supreme Court had operated for decades, without even having to express originalism as a method. All that changed in modern decades as the Court and the nation’s liberal legal culture adopted an understanding of the Constitution as an evolving document that was to be interpreted in light of current social needs — even if this required the abandonment of the Constitution as a regulative document.
Progressivists, as they styled themselves, argued that the Constitution is to be interpreted as a “living” text that can be made to mean whatever modern jurists and legal theorists want the text to mean. As Scalia would later explain, judges had grown accustomed to remaking the world in their own image, abandoning constitutional government.
This process began earlier than even most conservatives recognize. One of the earliest proponents of this trajectory was President Woodrow W. Wilson. By the time Antonin Scalia arrived at the Harvard Law School in the late 1950s, the idea of the “living” Constitution was established orthodoxy.
The moral revolution now reshaping Western societies could not have occurred without a cadre of judges and justices eager to advance that revolution by the assertion of radical ideas of personal liberty, autonomy, identity, and self-expression that the framers of the Constitution would never have recognized. The Constitution was bent and contorted to serve that revolution. New “rights” were invented that had no basis in the text of the Constitution itself, and would have been anathema to its original authors.
In the 1960s the Supreme Court invented an individual “right to privacy” that was used to overturn state laws against birth control. In 1973, the same argument was used by the Court’s majority in the Roe v. Wade decision legalizing abortion. In 2003, the Court struck down laws criminalizing sodomy and in 2013 and 2015 the Court issued rulings that eventually legalized same-sex marriage throughout the nation.
Even before his nomination to the Supreme Court in 1986, Antonin Scalia was known for his brilliant defense of originalism and what was often called a “strict constructionist” reading of the Constitution — though he preferred to call his approach “textualism.” Put simply, Scalia argued that the American commitment to democratic self-government required that the Constitution be honored as the nation’s authoritative text. He firmly believed in the right of the people to establish a constitutional government that would recognize the ultimate authority of the people, not an elite of unelected judges, to establish laws.
As he often said, his concern was not necessarily what policy the people should adopt through electing representatives who would produce legislation. His concern was who decides. It should be the people through their elected representatives, not an elite of judges. “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society,” he warned.
In his remarkable and haunting dissent to the 2015 Obergefell decision legalizing same-sex marriage, Justice Scalia made this point emphatically: “This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government.” He continued: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
He was often most eloquent in dissent and prophetic in his warnings. He warned that the Court’s 2003 decision in Lawrence v. Texas would mean “the end of all morals legislation.”
“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
If the people believe that same-sex marriage should be legal, then let them elect legislators who will accomplish that by law, Scalia urged. He advocated the same for abortion and endless other issues. He was stalwartly opposed to judges usurping political authority for themselves — though he fully understood that the Supreme Court’s majority intended to do just that. He also understood that the Constitution operated as a necessary restraint upon political impulses: “A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”
Scalia could be withering in argument, but was known as a jovial personality. His best friend on the Court was perhaps its most liberal member, Justice Ruth Bader Ginsburg. With brilliant clarity, he once explained, “I attack ideas. I don’t attack people. And some very good people have some very bad ideas. And if you can’t separate the two, you gotta get another day job.”
He also understood that his approach to the Constitution would not always lead to comfortable conclusions. “If you’re going to be a good and faithful judge,” he said, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
In 2009 he explained his understanding of the role of a justice in these words:
“We don’t sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you’re a good judge, you don’t really like the result you’re reaching.”
He was often a beacon of moral clarity. He once advised college students that they should understand a law higher than their own consciences. “More important than your obligation to follow your conscience,” he warned, “or at least prior to it, is your obligation to form your conscience correctly.”
History will record that Antonin Scalia influenced an entire generation of judges and justices and legal theorists. After Scalia, no one could ignore the originalist argument, even if they rejected it. But, at the same time, history may record Scalia’s brilliant effort as a failed project. The political reality is that we are unlikely again to see the appointment and confirmation of an originalist and constitutionalist like Antonin Scalia in the foreseeable future. President Barack Obama, a pronounced advocate of the progressivist cause, is almost sure to nominate a liberal to the vacancy. The Senate, which bears the responsibility to advise and consent, is unlikely to confirm that nominee, given the fact that this is an election year and the Senate is so split along partisan lines.
This sets up a battle royal between Republicans and Democrats in the Senate and beyond. The implications for the 2016 presidential race are urgent and explosive. Given the Supreme Court’s central role in almost every American controversy — part of the inheritance of the progressivist agenda — the future of the Court will be central to the presidential election. It has to be. The stakes for the nation are so very high. Antonin Scalia will be dearly missed and he may be virtually impossible to replace.
Christians must also remember that Justice Scalia’s understanding of the proper reading of the Constitution as a text is directly relevant to the church’s proper reading of Scripture. The same liberal theorists who propose reading the Constitution as a “living” and “evolving” text also propose that the Bible be liberated from its actual text and from the intention of its authors. Ultimately, this approach to the Bible, common to theological liberalism, denies the authority of God as the ultimate author of the Scriptures. It is no accident that liberal theology and liberal theories of the constitution emerged together in American public life.
Scalia’s worldview was shaped by his Roman Catholic faith, and he often scandalized liberals by making clear that he believed in the virgin birth and bodily resurrection of Christ and threw their unbelief back at them:
“For the Son of God to be born of a virgin? I mean really. To believe that he rose from the dead and bodily ascended into heaven. How utterly ridiculous.”
“God assumed from the beginning that the wise of the world would view Christians as fools, and he has not been disappointed.”
In his classic 1997 essay explaining textualism as the proper approach to the Constitution, Justice Scalia wrote these words:
“The American people have been converted to belief in The Living Constitution, a ‘morphing” document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of electing and confirming federal judges, at all levels, on the basis of their views concerning a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs to be done from age to age, we shall have caused it to do nothing at all.”
I fear that Justice Scalia was absolutely right in that analysis. We must pray that he was wrong.
[Dr. R. Albert Mohler Jr. serves as president of The Southern Baptist Theological Seminary – the flagship school of the Southern Baptist Convention and one of the largest seminaries in the world.]
And the second article:
Why Antonin Scalia was a jurist of colossal consequence
By George F. Will
Antonin Scalia, who combined a zest for intellectual combat with a vast talent for friendship, was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms. The serrated edges of his most passionate dissents sometimes strained the court’s comity and occasionally limited his ability to proclaim what the late Justice William Brennan called the most important word in the court’s lexicon: “Five.” Scalia was, however, one of the most formidable thinkers among the 112 justices who have served on the court, and he often dissented in the hope of shaping a future replete with majorities steeped in principles he honed while in the minority.
Those principles include textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them. These principles of judicial modesty were embraced by a generation of conservatives who recoiled from what they considered the unprincipled creation of rights by results-oriented Supreme Court justices and other jurists pursuing their preferred policy outcomes.
Scalia worried more than some other conservatives do about the “counter-majoritarian dilemma” supposedly posed by judicial review — the power of appointed justices to overturn the work of elected legislators. Many Scalia-style conservatives distill their admiration into a familiar phrase of praise: “judicial restraint.” Increasing numbers of conservatives, however, reason as follows:
Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”
Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?
This is an overdue argument that conservatism is now prepared for because of Scalia’s elegant mind. He was crucial to the creation of an alternative intellectual infrastructure for conservative law students. The Federalist Society, founded in 1982, has leavened the often monochrome liberalism of law schools, and Scalia has been the jurisprudential lodestar for tens of thousands of students in society chapters coast to coast.
Students of the court understand that, given Sen. Harry Reid’s demonstrated disdain for Senate rules, if Republicans had not won Senate control in the 2014 elections, the Nevada Democrat as majority leader would very likely now extend the institutional vandalism he committed in 2013. Then he changed Senate rules, by a simple majority vote and in the middle of a session, to prevent filibusters of judicial nominees other than Supreme Court nominees. This enabled President Obama to pack the nation’s second-most important court, that of the U.S. Court of Appeals for the District of Columbia Circuit. Were Reid still majority leader, the Senate’s only rule would be the whim of the majority of the moment, and his caucus would promptly proscribe filibusters of Supreme Court nominees.
One consequence would be this: The United States today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. A Democratic president in 2017 would nominate to replace Scalia someone pledged to construe the amendment as permitting Congress to regulate political campaign speech, which would put First Amendment jurisprudence on a slippery slope to regarding all speech as eligible for regulation by the administrative state.
Scalia lived 27 years after the person who nominated him left office, thereby extending the reach of Ronald Reagan’s presidency and reminding voters of the long-lasting ripples that radiate from their presidential choices. A teacher, wrote Henry Adams, attains a kind of immortality because one never knows where a teacher’s influence ends. Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach and construe it.
[George F. Will writes a twice-weekly column on politics and domestic and foreign affairs. He began his column with The Post in 1974, and he received the Pulitzer Prize for Commentary in 1977.]