Medical Tuesday Blog
Obituary: Antonin Scalia Always right
Antonin Scalia, Supreme Court justice, died on February 13th, aged 79
The Economist | Print edition | Obituary | Feb 20th 2016
IF YOU were bold enough to ask Antonin Scalia questions, you had to be precise. Otherwise the bushy black brows would furrow, the chin would crumple and the pudgy, puckish body would start to rock, eager to get at you. Wasn’t he violently opposed to Roe v Wade, the abortion ruling? “Adamantly opposed, that’s better.” Did he have any guilty pleasures? “How can it be pleasurable, if it’s guilty?” Lesser lawyers who were vague in oral argument faced a barrage of sarcasm or, if he agreed with them, constant chiding to do better. (“That’s your strong point!”) Dissenting colleagues at the Supreme Court had their opinions described as “argle-bargle”, “jiggery pokery” and “pure applesauce”.
Words had meaning. He revered them and used them scrupulously, even in insult. The law was written in words, and those ideally laid down bright lines for everyone to follow. As a committed textualist, he wasted no time looking to legislative history, the purported purpose of a law or the comments of some egregious congressman. It meant what it said.
As for America’s constitution, speaking as the court’s originalist-in-chief, all that mattered was what its words meant when it was framed. He was in love with it; he was in awe of the men who wrote it; the late 18th century was a time when genius burst forth on the eastern seaboard, as it had in Periclean Athens. But for him the founding document was not “living”, not some organism endlessly adaptable to society, as Justice William Brennan, a distressingly liberal predecessor, used to think. It couldn’t be found suddenly to contain newfangled “rights” to privacy, as in Roe. It was dead! Dead! (Or perhaps, to be more tender and precise, “enduring”.) Its business was to block change, not advance it, and if it thereby obstructed something he himself, as a very conservative fellow, disliked, so much the better. Death-penalty cases he dismissed in minutes: the penalty was clearly constitutional. Church-and-state cases took no longer: the Framers had built no wall between them, and anyway, didn’t government get its authority from God? He would go home, to a Martini and a large dinner, and sleep like a baby.
The beloved document, however, never promised perfect outcomes. In 1989 he found himself ruling (joining Brennan!) that it didn’t stop sandal-wearing bearded weirdos burning the American flag. (Personally, he would have clapped them all in jail; he longed to mark his opinion loudly with a rubber stamp, “Stupid but Constitutional!”) In several cases the constitution enhanced, rather than curbed, the rights of criminal defendants and terrorists. He did what he had to do. This made him a less predictable justice than many supposed.
More often, the document said nothing at all about some modern obsession: torture, abortion, discrimination. But then such matters, as Justice Scalia kept saying, were never meant to be settled by an unelected committee of nine; they were meant to be resolved by the people, through legislation. If he were a king, as his swagger and opera-singing occasionally suggested, he would stretch the constitution any way he wanted. In fact, as he admitted with a grin, it handcuffed him. . .
Family-fond (nine children!), gregarious and funny, he got on with his colleagues, and made a surprising best buddy of the court’s chief liberal, Ruth Bader Ginsburg. But he spared no ammunition in dissent. As early as 2003, when Lawrence v Texas struck down sodomy laws, the majority had “signed on to the…homosexual agenda”. In 2015, when the court narrowly saved Obamacare, “We should [call] this law SCOTUScare.” He never tried for consensus, not rating it anyway, and increasingly sat with the minority, though always the most colourful and quotable . . .