Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.
Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.
In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.
During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices.
Unquestionably, Scalia’s ideas will still be discussed in 100 years, much in the same way we still discuss Joseph Story, Oliver Wendell Holmes, Jr., or Learned Hand. This raises the question, however, of whether Scalia was one of the last great Supreme Court justices. Let me explain:
Only a few hours after Scalia’s death was announced, people began discussing how an ensuing nomination fight would go down. Every indication points to complete stagnation, and President Obama will likely end his presidency unable to fill the vacancy, leaving the Court one justice short. Of course, he could nominate someone who the Senate would confirm--an ideological moderate--but he is no more likely to do that than a Republican president in the same situation. The Court is simply too important now.
Which is why Justice Scalia was one of the last of a dying breed: an iconoclastic Supreme Court justice with hard and fast principles, a blazing intellect, and the wherewithal to carry an entire school of jurisprudence on his back. In other words, someone who could never be confirmed today, no matter which party nominated them.
This is true for both parties. Many times, I've heard people on the left say, "we need a Scalia," acknowledging the force of the man's words and ideas. Current battles over the Court almost guarantee that neither side will find another one.
Now, two qualifications are paramount for possible Supreme Court justices: 1) youth; 2) ideological conformity. The grueling nomination process also means that prospective nominees must have led ideologically milquetoast lives, never having said too much to push the wrong people’s buttons, but having said just enough to convince the party that they are a predictable, party-line vote. Certainly, a Scalia nomination today would have no chance of winning approval.
Truly brilliant legal minds like Scalia help create the intellectual framework for our judicial system, and I fear that we will not see many more like him.
My deepest condolences to the Scalia family.