Justice Antonin Scalia of the Supreme Court of the United States died yesterday. Born in Trenton, New Jersey on March 11, 1936, he was 79 at his death.
A graduate of Georgetown University and Harvard Law School, Justice Scalia began his legal career at the law firm now known as Jones Day. After six years there, he left to join the faculty of the University of Virginia Law School in 1967. Five years later, President Nixon appointed him as General Counsel for the Office of Telecommunications Policy. He was later served as an Assistant Attorney General in the Office of Legal Counsel, worked at the American Enterprise Institute, and taught at the University of Chicago Law School. In 1982, President Reagan appointed him to the United States Court of Appeals for the District of Columbia Circuit. Four years later, President Reagan nominated him to the Supreme Court. Justice Scalia was confirmed by a 98-0 vote in the Senate.
Justice Scalia was a passionate advocate of “originalism,” rejecting the idea of a “living Constitution” and instead seeking all answers to constitutional questions in the text of the Constitution itself and the understandings of the men who had drafted and ratified it many years earlier, in different times, and despite the differences among the views of those men themselves. He disdained the use of legislative history to interpret statutes, again asserting that the only legitimate basis for interpreting statutes was the language of the statute itself.
Whether these methodologies led Justice Scalia to his results, or vice versa, his opinions virtually always came down on the side of political conservatives. (Among the most notable exceptions was Texas v. Johnson, 491 U.S. 397 (1989), in which Justice Scalia joined a five-Justice majority to void statutes the criminalized desecrating the American flag). Justice Scalia was the intellectual leader of the Court’s right wing, using his intellect and a trenchant writing style to move the Court rightward over the nearly 30 years that he served on the Court.
Justice Scalia generally advocated for a very strong Executive Branch, sided with states against the federal government on federalism issues, and held for businesses and against consumers, especially in class actions. On social issues such as abortion, homosexuality and same sex marriage, gun rights, and the death penalty, he was a reliable and outspoken vote for the conservative agenda. And, unsurprisingly, he was as shrill an opponent of the Affordable Care Act as any Republican politician, labeling the view of the Court’s majority, which has repeatedly upheld “Obamacare,” as “absurd” in last year’s ruling in King v. Burwell, 576 U.S. ___ (2015).
Always one to express himself strongly in his written opinions, whether in the majority or in dissent, in more recent years Justice Scalia’s prose, especially in dissent, became increasingly vitriolic and his attacks on other Justices more and more injudicious. He mocked an abortion opinion by Justice O’Connor as one that “cannot be taken seriously,” charged that Justice Sotomayor had offered a statement of facts that was “so transparently false that professing to believe it demeans this institution,” and assailed Justice Kennedy’s majority opinion in last year’s same sex marriage case as “couched in a style that is as pretentious as its content is egotistic.” Despite that sort of personal hostility in his writing, Justice Scalia was often droll, and he enjoyed warm relationships with his colleagues, including Justice Ginsburg, with whom he shared a love of opera.
There is much more to be said about Justice Scalia, which will be said by others at greater length and in more depth. Suffice it to say that the Court has lost its most colorful, and perhaps most influential, Justice. Justice Scalia’s death raises the stakes for this year’s Presidential election, since if Senate Republicans carry out their promise not to vote on any nominee that President Obama offers to fill Justice Scalia’s seat, the next President will be able to nominate Justice Scalia’s successor.