Two years ago, out near the Marfa Lights, east of the Mexican border, on the Cibolo Creek Ranch, Supreme Court Justice Antonin Scalia died. He was born in New Jersey on March 11, 1936 and died in Texas on February 13, 2016.
Justice Scalia was never at a loss for words on the bench. He asked many questions and was sometimes brutally forceful in persuading both petitioner and respondent attorneys to fall in line with his legal conclusions. Justice Scalia’s questioning was meticulous, exploring the nuances of legal text, while his comments were often bludgeoning. He also possessed a sense of humor that caused the courtroom to erupt in laughter on a regular basis. Furthermore, the witty and thorough writing Justice Scalia honed while on the D.C. Circuit carried over to the Supreme Court. He wrote more concurring opinions than any other justice in Supreme Court history, and is third for most dissenting opinions. His opinions were expertly written, but his tone could sometimes be considered crass or offensive. Sometimes, his memorable quips even make headlines (e.g., his dissent in King v. Burwell in 2015, the “Obamacare” case, included references to “pure applesauce,” “jiggery-pokery,” and “SCOTUScare”).
A few days after his death, the Law and Liberty website organized a symposium on Scalia with six contributing legal scholars. A couple of samples:
Ralph A. Rossum
In 1987, a year after Antonin Scalia’s confirmation as an associate justice of the Supreme Court, only 7 percent of the briefs filed before the Supreme Court made an originalist argument. Twenty years later, 35 percent did so. This is no accident.
Scalia joined a Supreme Court whose members were generally results-oriented, embracing some notion of a “Living Constitution”—the belief that the founding charter is essentially an empty vessel into which they could pour whatever new wine they wished. They saw the Constitution as having no permanent or fixed meaning but rather as a living, evolving document that must be interpreted to conform to the times. Justice Scalia utterly rejected that view. He insisted instead that the times must conform to the Constitution, and he pulled the Court (initially single-handedly, later in tandem with Justice Clarence Thomas) in an originalist direction.
He never quite took my point that this was indeed what the “natural law” was about—not some high-minded “theory” hovering above the earth, but the axioms of reason as they bear on our practical judgments of right and wrong. We would persistently joust with each other over “natural law,” and yet on one issue after another, he was the justice who spoke my mind in the case at hand, whether it was the defense of the child in the womb, the preservation of marriage, a respect for federalism and the separation of powers, or the rejection of racial preferences in assigning benefits and disabilities to people solely on the basis of their race. And so when the Court issued an opinion and he was in dissent, I would begin by reading his dissent first. I would take that as the argument that the opinion for the majority would have to beat.