A Legacy of Controversy: Remembering Antonin Scalia

J.-SCALIA

 

Two fights erupted when Antonin Scalia died. The first was about his replacement. A mere hour after news of his passing spread, Senate Majority Leader Mitch McConnell (R-Ky) told the nation that Scalia’s successor would not be appointed by President Obama. What followed descended from sound bites to questions of who had spoken on election-year nominations, and then finally a mere back-and-forth. In the nearly 80-year-old justice’s wake lay that which he wanted least from the court – naked political bickering.

The second fight following Scalia’s death is about his legacy. The nation’s op-ed pages have been flooded by attempts to answer a question as intractable as the Justice himself: How should we remember Justice Antonin Scalia?

President Obama described him “as a larger-than-life presence on the bench — a brilliant legal mind with an energetic style, incisive wit, and colorful opinions.” In giving remarks over the death of this “towering legal figure of our time,” Obama continued: “He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court.”

From the left there seemed a near-unified narrative: despite political differences, Scalia was a good person, and a worthy adversary. He was beloved by his family, his friends, his “clerkerati”, and even some of his opponents. Most notably, Justice Ginsburg gave a short statement about her dear friend and his way with words:

. . . . From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Despite whatever personal traits the justice had, many argue that Scalia’s personality cannot outweigh his “30 year battle with social progress.” Perhaps the sharpest critique came before his death. In an editorial for the New York Times, famed judge Richard Posner argued that Scalia’s jurisprudence was dangerously becoming a “majoritarian theocracy.”

“It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court,” Posner wrote. In tracing Scalia’s comments regarding gay rights, he wrote:

The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical. It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.

In time, more reflections have turned critical. In questioning how Scalia will withstand “the judgment of history,” Melvin Urofsky noted another developing consequence of the Justice: increasing ad hominems in the judiciary. He wrote:

Scalia will without doubt be remembered as one of the best writers on the court. Even those who disagree with his opinions read them just for the fun of it. But he often went too far, especially when in dissent, and his tirades insulted more moderate conservatives such as Sandra Day O’Connor and Anthony Kennedy. The justices shrugged it off with a “well, that’s just Nino.” In recent years, observers have noted that a nastiness is showing up in lower federal courts. A number of opinions have attacked opposing jurists not just on jurisprudental grounds, but on a personal basis as well. “If Scalia can do it,” the writers seem to think, “then so can we.”

Who is right? Should he go down as one of the most consequential Supreme Court justices in history? After all, did he not single-handedly obliterate focus on legislative history? Or, should he be remembered as a roadblock to national progress, a jurist who’s old, white, and dead moral convictions did not match the circumstances in which he lived? One need only look to his dissents in Romer or Obergefell, or to his suggestion that minority students are better off in “slower track” schools to find a wealth of ammunition for a more skeptical remembrance.

If a legacy consists of how one acted around friends and family, then let us remember him fondly. If a legacy is more than that, though, then let us be skeptical. What comfort is it to minority students that the man who would deny them access was “nice”? What comfort is it to the committed same-sex couple that the man who would deny them marriage – indeed, who would allow the state to criminalize their sex – was uniformly well liked?

A legacy is a set of consequences. Like ripples in a pond, it is what happens in the wider circles after the stone has sunk to the bottom. In this way the legacy of Antonin Scalia is a set of arguments. While he, his originalism, and his disdain for legislative history have altered the way judges interpret the law, the legal community is still left wondering whether that change is such a good thing. And for many, the arguments to be had are not whether Scalia was wrong in certain cases, but precisely how.

Scalia was, however, an occasional friend to the expansion of civil rights and civil liberties. In Hamdi, his dissent, a passionate defense of the right to due process for all American citizens was both surprising and inspiring in its break from conservative members of the court. Similarly, his stand in Crawford v. Washington was a bold and eloquent protection of the rights of criminal defendants. In another controversial case, Texas v. Johnson, Scalia joined the majority in holding that burning the American flag was protected under the first amendment.

“I never thought that the flag I owned is your flag,” he told Dallas County Assistant District Attorney Kathi Alyce Drew when she argued for the state that the flag was public property.

Moments like these were Scalia’s finest. His breaks from partisan expectations, his willingness to do the unpopular, and of course, his acerbic wit – all merit a place in his legacy. But so does the notion that these breaks stand out because they were rare.

The legacy of Antonin Scalia consists of the effects he had on the world. It is how his opinions shaped the experience of millions. His legacy, like his life, consists mainly of a robust and critical debate. It is for that reason we at the Harvard Civil Rights-Civil Liberties Law Review hesitate to leave it in one piece. Therefore, we intend to participate in the shaping of his legacy by publishing many views on Scalia’s life and jurisprudence. It is our hope that by looking at Scalia’s legacy through a variety of perspectives, we will be closer to understanding who he was, what his impact was on civil rights and civil liberties, and what we ought to make of it.

 

 

Written by

Adam is a 2L at HLS. He is interested in voting rights, the first amendment, and employment discrimination issues. Prior to law school, Adam spent a year with AmeriCorps providing anti-poverty services in Alabama.

No comments

LEAVE A COMMENT