Conservatives were often frustrated with Scalia’s rulings. In 1990 he established a legal test for determining when laws excessively intrude on people’s religious beliefs. Where previous rulings had required the government to back away from unduly limiting religious practices, Scalia held that the Constitution does not “bar application of a neutral, generally applicable law to religiously motivated action.” In other words, if a person’s religious beliefs conflict with a law, too bad. Religious conservatives have struggled ever since to reverse that decision. Conservatives were likewise disappointed in a case called City of Arlington v. FCC, when Scalia — usually skeptical of the powers of unelected administrative agencies — wrote an opinion that requires judges to accept these agencies’ rulings regarding the scope of their own powers. Even the moderate Chief Justice John Roberts dissented in that one. He, along with Justices Samuel Alito and Anthony Kennedy, thought agencies needed stronger checks and balances.
Those who believe in constitutional protections for individual freedom often found Scalia an opponent, not an ally. He ridiculed what he called the “Thoreauvian ‘you-may-do-what-you-like-so-long-as-it-does-not–injure-someone-else’ beau ideal,” and went out of his way to distance himself from the principles articulated in the Declaration of Independence, when Justice Clarence Thomas cited them in two opinions in the 2000s.
On questions of free speech, freedom of religion, and criminal justice protections, Justice Scalia was often less than vigilant. He frequently ruled in favor of government’s power to post religious statements in government buildings or to issue official prayers on the taxpayer’s dime. He routinely ruled that government could censor speech it called indecent. And in Lawrence v. Texas, he wrote an impassioned dissent, arguing that states should be allowed to send armed officers into people’s bedrooms to arrest them for private, consensual sex whenever voters disapproved. States, he said, could even punish people for masturbating.
These opinions reflected Justice Scalia’s deep commitment to the idea that the majority’s will should almost always trump individual rights — the exact opposite of the view of James Madison, Father of the Constitution, who thought people are fundamentally free, and government restraint is the exception.
Any successor President Obama names is likely to have strongly left‐leaning views — willing to uphold expansive federal power and limit the rights of property owners and entrepreneurs. But such judges are also likely to be more protective of people accused of crimes, or who don’t profess a traditional religion, or who think their private lives are none of the government’s business. And on some subjects close to the hearts of conservatives — federal power over personal behavior, or the exercise of religion — even a liberal successor might make little difference.
Justice Scalia was a brilliant and likeable man, an outstanding writer, and a judge who sincerely did what he thought best. But, as with his liberal colleagues, his record had its upsides and its downsides — and his successor will also have strengths and weaknesses. Conservatives may mourn his passing, but they should not panic about his replacement.