Reviled and beloved, florid and acerbic, loud, incorrigible and blunt. The US is far more Scalian than when a district judge named Antonin was called to the supreme court in 1986, and his death on Saturday left Americans wrangling with the justice’s legacy in politics and law.
But if the supreme court is the referee of Washington, as Chief Justice John Roberts tells it, Scalia was the umpire who got into fistfights with players, coaches, fans, and every so often threw a bat at the guy selling popcorn.
For nearly 30 years Scalia was the loudest, most irascible man or woman on the bench, and he won innumerable enemies for it. In the last 16 years he told Americans to “get over” the court’s decision in favor of George W Bush which decided the destiny of the presidency; argued that legalizing same-sex marriage was a “threat to American democracy”; called protection of voting rights “racial entitlement” and even recently suggested minority students might be better off at “lesser schools”.
On nearly every issue of the culture wars, Scalia was a conspicuous cheerleader, if not an explicit spokesman for conservative causes. He sought to bring abortion back to the court, wrote the landmark decision that first protected individual gun rights, voted to hollow out the Voting Rights Act, which was the keystone of the civil rights era, and argued that states had the right to outlaw gay sex.
The justice did all this and more with ghoul metaphors, allusions to Shakespeare, and talk of applesauce, “jiggery pokery” and nude dancing. He eventually became one of Democrats’ great bogeymen – an inexhaustible source of clever arguments and cleverer insults, pouring out opinions from the highest court in the US.
“If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal,” he wrote in a 1996 dissent, “the game of soccer would not exist.”
He raised the profile of the court with his jokes, bombast and frequent speaking events about law and his beliefs. But for all his conservative credentials, Scalia defied any stereotypical mold. He was close friends with liberal justices on the court. He and Ruth Bader Ginsburg, arguably the most liberal justice on the court, celebrated holidays together, went on vacation in France and rode an elephant in India. He went hunting with Dick Cheney in 2004, and then with liberal justice Elena Kagan in 2013.
The son of Italian immigrants, a Romance languages professor and schoolteacher in Trenton, New Jersey, he acquired eclectic tastes and friends – opera, poker and Seinfeld – and enjoyed the writing of David Foster Wallace and reference books about grammar. He went by the nickname Nino, and was a Catholic who believed in the devil and knew how to play devil’s advocate. Even Scalia’s voting record does not rank him as conservative as two peers, Samuel Alito and Clarence Thomas.
And though Scalia is often thought of as an ideologue – the man who once declared the constitution “dead, dead, dead” – his greatest victory came in changing the practices of the court rather than its beliefs, limiting elastic interpretation of that which was written in law.
Before he reached the supreme court in 1986, judges debated whether statutes, the bread and butter of law, came down to the words or the intentions behind them. Scalia argued for nearly 30 years that the words mattered most, and he largely won the war. When she joined the court in 1993, Ginsburg frequently raised the spirit of a law to argue her case. In 2016 even she rarely starts anywhere but the text.
“We are governed by laws,” Scalia wrote in a 1993 opinion, “not by the intentions of legislators.”
He managed this feat in a string of decisions and dissents that pushed the court away from an idea it had relied on since 1892, that “a thing may be within the letter of the statute and yet not within the statute” – that justices can rely on what Congress meant but said poorly, or not at all.
But if Congress makes awkward compromises, Scalia argued, then those odd phrasings are the limits of the law, and the court should respect them. His colleagues slowly started to listen, and by the mid-1990s even Ginsburg and Sandra Day O’Connor were writing opinions that assumed laws are the fruit of messy agreements.
Even in defeat, Scalia inched the debate toward the question of text versus intent. In his 2015 dissent to a decision upholding Barack Obama’s healthcare program, for instance, he mocked the government for the phrase “inartful drafting”, and accused other justices of overreach. “We should start calling this law SCOTUScare.”
The justice would, occasionally, rule against his own political preferences when he thought the words proved him wrong. In 1989, for instance, he begrudgingly agreed with the court that free speech rights protect burning the American flag.
“We decide who wins under the law that the people have adopted,” he told C-Span in 2009. “Very often, if you’re a good judge, you don’t really like the result you’re reaching.”
His success bringing the doctrine of “textualism” to the supreme court helped foster the spread of a more extreme philosophy, “originalism”, which has been embraced by uncompromising conservatives such as the Tea Party and Ted Cruz. Cruz, a Texas senator and Republican candidate for president, turns Scalia’s creed on its head by interpreting the “dead” words of the Constitution according to what he believes its country’s founders intended.
Cruz’s more extreme brand of conservative thinking is only one sign of the larger trend in which Scalia played a part. The judge was nominated by a Republican president who granted amnesty to nearly 3 million people; he died the same night Republican candidates contemplated whether it was practical to deport 11 million people. He was confirmed by a 98-0 vote in the Senate; whomever Barack Obama nominates as his successor faces almost certain rejection.
Americans are feeling frustrated, angry and loquacious – Scalia’s classic mix – and they’re expressing it by voting for the flamboyant insults of Donald Trump, the lawyerly Cruz, and even the obstreperous Democrat Bernie Sanders.
All three of those candidates who have travelled from the fringes stubbornly say that their philosophy (cutting “great” deals, cutting all government, cutting out corruption) will win out, and none of them care about being politically correct. Cruz named Scalia “an American hero”, and said in a statement after his death that the justice “return[ed] the focus to the original meaning of the text after decades of judicial activism”.
Chief Justice Roberts has lamented the way politics have seeped into the court’s business. Republicans including Cruz have accused Roberts of personally betraying conservatives, and party leaders in Congress have all but promised to block a new judge for as long as 340 days, if necessary, even though the court faces important cases in the next term.
The party’s drift to the right over the last 20 years leaves Republicans with a difficult choice. They could refuse any Obama nominee until the next president takes office, in January 2017, in which case they avoid a liberal majority on the court but face two dangers: the decisions of a eight-justice court that now lacks its most famous conservative; and the danger of alienating voters with their intransigence.
They could try to find a compromise nominee with the Obama administration, though that would probably be unacceptable to many voters and members of Congress during an election year.
For all Scalia’s influence on the court and conservative thought, the Republicans who would name his successor have shown a striking lack of discipline. Party leaders have so far refused to take on the unpredictable Trump, and a few senior Republicans have themselves been ousted by internal revolt in the last year. For Cruz, Tea Partiers and many other Republicans, only a nominee as conservative as Scalia will do – regardless of what he himself might have thought.
“You know, for all I know, 50 years from now I may be the Justice [George] Sutherland of the late 20th and early 21st century,” Scalia told New York magazine in 2013, referring to former justice who fought reforms in the 1940s. “He was on the losing side of everything, an old fogey, the old view. And I don’t care.”
