Editor’s Note: This post was originally published at Townhall.
In an End of Discussion era, Justices Antonin Scalia and Ruth Bader Ginsberg did something that few Americans of different views seem to be able to do: Get along. Both of them were academics. And both of them served on the D.C. Circuit Court Of Appeals, where they would share each other’s opinions–offering notes and citations that would serve to strengthen each other’s written work.
When they were on the Supreme Court together, one case didn’t necessarily strain their friendship, but it got tense. It was the landmark United States v. Virginia case that struck down the males-only admission process at the Virginia Military Institute. Justice Clarence Thomas had a son who was attending the institution and recused himself, but in the end–Scalia was the lone dissenter. Ginsburg recalled how her cherished colleague gave her his penultimate copy of his dissent, which Scalia described as a “great dissent.” Reading it while traveling to a judicial conference at the time, Ginsburg said it ruined her weekend. But he did give her a few extra days to respond, for which she was very grateful.
Both jurists said that their written work, of which Scalia is often noted as being one of the best, was very important to them. Ginsburg admits that her judicial opinions are quite dull, whereas she complements Scalia for having “jazzy” ones.
In many interviews, Scalia said that you cannot be a judge if you cannot disagree with your colleagues in a professional manner–and he never took disagreements with his colleagues personally over his long legal career. While the subject of a 60 Minutes segment on CBS, Scalia told Lesley Stahl “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 got to get another day job. You don’t want to be a judge–at least not a judge on a multi-member panel.”
You can see how that in the deluge of admiration, love, and respect that was outpoured by the legal community and his colleagues, many of whom he most certainly had sharp disagreements, though all acknowledged the great imprint he left on American jurisprudence. While not doing law, Ginsburg and Scalia often celebrated New Year’s Eve together with their families. Besides being a fan of the opera, he was an avid hunter, with Justice Elena Kagan being his “hunting buddy.” Scalia had directly suggested to David Axelrod, then-senior adviser to President Obama, that they should send Elena Kagan to sit on the Supreme Court. Axelrod was seated at the same table as Scalia during the White House Correspondents’ Dinner several years ago, which is when he made the suggestion. Sonia Sotomayor was nominated instead, but when John Paul Stevens decided to retire–Kagan’s number was called up. Axelrod later found out, like Ginsburg, that both were friends as well. Why suggest a liberal be on the Court? Well, there’s a Democratic president, meaning a no-go on an originalist candidate, but she’s “smart,” and qualified to be on the Court. On the latter two, Scalia’s odds were better.
While viewed as one of the anchors of the conservative wing of the Supreme Court, Scalia held positions that put him at odds with others who share that label, specifically many voters in the Republican Party. He voted to strike down Texas’ flag desecration statute, arguing that burning American flags is protected free speech. At the same time, he did comically say that he would throw this person into jail if he were king.
Additionally, it seems odd that many on the left find his judicial philosophy controversial. Believe it or not, Originalism used to be the majority school of thought regarding legal theory.
In March of 2005, Justice Scalia offered an example of how Originalism was used by judges, the courts, and even in public opinion concerning giving women the right to vote at the Woodrow Wilson International Center for Scholars in Washington, D.C.:
Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old-fashioned way and adopted an amendment.
Justice Scalia is often painted as evil for his opposition to abortion rights, affirmative action, and other courses that are arranged on the socially liberal buffet. It’s not that he was against such things, but thought that the main vehicles for social change should be relegated to the voter, a ballot, and a ballot box–not some guys and gals dressed in black robes wielding gavels. He states plainly that there is nothing barring American society from legalizing same-sex marriage or abortion. If you want those things, pass a law. The death penalty isn’t explicitly stated in the Constitution, but it is contemplated in the Fifth Amendment, where it says that you cannot be deprived of life without due process of law. Nevertheless, it doesn’t say anywhere that you cannot ban capital punishment, which is why some states, including Republican ones, have already done so. As it so happens the death penalty remains popular, and no politician wants to look soft on crime, though that stigma is loosening with more Republicans joining the cause of criminal justice reform. Speaking of justice, Scalia also happened to be a staunch defender of criminal defendants’ rights. The reason: they’re explicitly outlined in the Constitution (via Slate):
“I ought to be the darling of the criminal defense bar,” Scalia once pleaded. “I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.”
Scalia wrote several opinions vigorously protecting the Fourth Amendment. “Justice Scalia actually believed that a group of revolutionaries cared deeply about privacy,” says Richard Myers, a law professor and former federal prosecutor. Scalia’s Fourth Amendment opinions, Myers added, illustrate that while “he did not believe in a living Constitution, he believed in a powerful, binding one.” For example, in Kyllo v. United States, the court held that the use of a thermal-imaging device to keep tabs on a private home is a Fourth Amendment search.
The government argued that no search of the home occurred because the thermo-imaging device captured “only heat radiating from the external surface of the house.” Scalia, however, in his opinion for the court, was having none of it: “But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house.”
In a recent tribute, professor Rachel Barkow, who called clerking for Scalia “one of the highlights of my life,” emphasized his outsized contribution to this area of law. As she wrote, Scalia was a “staunch advocate of the jury guarantee,” and his opinions “led to a sea change in modern sentencing practices.”
Barkow points to Scalia’s dissent in Maryland v. Craig, where he railed against the court for permitting “a child witness to testify via closed circuit television in a sex abuse case,” instead of requiring the child to testify live in the courtroom where she would be subjected to cross-examination by the defense. The Constitution, Scalia wrote, does not authorize judges to “conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings.”
Later, in Crawford v. Washington, Scalia’s view that the historical understanding of the right to confrontation won the day. In the Crawford case, the prosecution “played for the jury” the alleged victim’s “tape-recorded statement to the police describing the stabbing, even though he had no opportunity for cross-examination.” The state court affirmed the conviction despite use of the tape because the “statement was reliable,” a logic that Scalia roundly rejected: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”
Now, with abortion, he might shock some who vilified him when he said that he doesn’t believe that it’s appropriate to say we should overturn Roe v. Wade on the basis of a 14th Amendment, which was explicitly drafted to protect the rights of recently freed African-American slaves (i.e. walking around people, as he would put it.) No one ever voted for the 14th Amendment to be applied to abortion rights. As to whether illegal immigrants have constitutional protections, he would agree that they do. Anyone within the borders of the U.S. has such protections.
Scalia was a justice who believed in the rule of law; that there was flexibility in our Constitution, but not irrational, unprincipled interpretations of what people would like it to say. That society should move forward democratically through legislatures, which are better equipped (and have more legitimacy) in discerning how to respond to the changing societal attitudes. This made him anathema to the left, which must break every institution to the will of some progressive ethos centralized by a select few in Washington. A brick in the wall fell when Scalia passed, hence why the champagne bottles came flying out.
The news of Justice Antonin Scalia’s death sent shockwaves through the country. Conservatives were somewhat electroshocked into seeing 2016 as a higher stakes game, while progressives either offered insincere remarks about the death of this legal titan, or outright danced on his grave. The depraved elements of the progressive left had finally seen their longstanding foe expire, and were salivating over his death and the political implications that would ensue: dragging the Court back leftward, especially with a key abortion case about to be heard before it. Yet, this was to be expected. These people are the same ones who mocked prayer (and the people who participate) after a terrorist-inspired shooting–and they booed God at the 2012 Democratic National Convention.
Yes, past justices have hurled derisions and aspersions at their colleagues, but it was always done in private, and not known until the jurist that was ridiculed had passed away. It’s still awful, but it was done in a way that ensured the integrity of the institution wasn’t caught in the crossfire as well. Stephen L. Carter, a law professor at Yale who was mentored by the late Thurgood Marshall, wrote about the horrid state of our politics, given that the progressive left is lusting for Justice Clarence Thomas to die next. Carter, like so many, respected Scalia. Carter noted that reading his opinions often strengthened his own, adding that one of the tests we all face is learning from people whose views we sometimes cannot stomach. He noted how Marshall respected those who fought him furiously on matters of racial segregation, calling them good people–but just wrong about race. He even spoke with admiration of the very legal minds trying to muddy his legal imprint on this nation:
Scalia was un homme sérieux in the classic sense — a person of both seriousness and character, a man hard to bully. Did I disagree with his positions? Frequently, and often with passion. But he was a brilliant scholar and jurist, as well as a marvelous writer, and I never failed to learn from his wonderfully crafted opinions. The need to counter his arguments made mine better. And on some issues (the importance of robust protection of Sixth Amendment rights, for instance) Scalia’s opinions converted me to his cause.
It’s tragic that we can’t respect and admire each other across our many differences. It’s worse that we dance when people die. If the depressing deathwatch is the best we can do, I for one would rather go without a Supreme Court of the United States.
Carter did add a footnote, noting that both Ginsburg and Scalia were “two great voices” for Sixth Amendment rights. That’s what people, specifically on the left, miss about Scalia/Ginsburg. They disagreed, but worked together in a way that their back-and-forth on certain cases worked to the country’s benefit regarding interpretation of law. Neither one was going to fold their arms and refuse to work with one another. That would be nonsense. In the process, a mutual respect and friendship formed, though Scalia did remark that Ginsburg was just bad with the “knee-jerk stuff.” In all, this grave dancing stuff is almost a bit sad given that there was a whole host of issues, like criminal defendants’ rights, where both Nino and RBG did find areas of agreement. Both of them noted that a lot of what they do is incredibly boring and dense lawyers work, like deciphering statutes of the Employee Retirement Income Security Act (ERISA). Folks, this isn’t WWE. It’s even more boring than watching C-SPAN or The Lawrence Welk Show.
Scalia wasn’t the devil incarnate–and those who think he was are ignorant, immature trolls who have no room at the debate table. He was a human being with a YUGE family, who also happened to be many, many football fields smarter than pretty much all of us.
In 2010, when the chief justice announced from the bench the death of RBG’s husband Marty, Scalia wept.
— Irin Carmon (@irin) February 13, 2016
When Justice Ginsburg’s husband, Marty, a prominent tax attorney, had passed away and Chief Justice Roberts announced his death from the bench–Scalia wiped tears from his eyes. That’s what happens when the husband of your best buddy passes away. It’s also what normal people do.
So, yes–liberals are rejoicing. It’s disgusting, but conservatives shouldn’t be too worked up by these puerile antics; Nino would have supported them whole-heartedly, maybe even laughed at some of the tweets that celebrated his untimely passing. For all we know, he might have found a handful to be interesting.
Oh, and people have noted some inadequate answers on a few key cases and issues relating to American jurisprudence by Scalia. No one ever said originalism was perfect, as the late jurist admitted, but they have an answer to a lot of questions, especially the most controversial like abortion and the death penalty. It’s so easy that Scalia quipped that he didn’t even need to read the briefs. Tragically, that humor, and much more, will not be present within the walls of the Supreme Court. Roll Call took this picture of the Court in mourning today. They report that it’s tradition to drape a “black wool crepe” in the area which he presided over.
The Supreme Court is in mourning today. pic.twitter.com/IKPzkCfoOt
— Roll Call (@rollcall) February 16, 2016
— Todd Ruger (@ToddRuger) February 14, 2016