The question is crucial because it helps delineate the difference between a judge and a legislator, at least in theory. Legislators get to always vote their preferences; judges, however, don’t.
For most people, Supreme Court opinions such as last June’s Obergefell v. Hodges — the case that legalized same‐sex marriage throughout the country — are good or bad depending on their policy preferences. Do they like same‐sex marriage? Then it’s a good decision. Not like it? Bad decision. Consequently, most people’s estimation of our justices mirrors that assessment: Did they vote for legalizing same‐sex marriage? Good justice. Against it? Bad justice.
Many people’s assessment of Scalia’s legacy goes no deeper than this. This is a profoundly unfortunate way of viewing Justice Scalia, a man whose towering intellect deserves more than the description “bigot.”
To Justice Scalia, as well as many of his fellow conservatives on the bench, to be a judge was to strive to eliminate his policy preferences from his decision making as much as possible. As he once said, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Full disclosure: I am an originalist, and I was, and am, a big fan of Justice Scalia. Nevertheless, I often profoundly disagreed with his views, particularly on gay marriage. Yet, even in his vituperative dissents in the gay marriage cases, there was still a sense that Scalia was imploring us to detach our personal opinions about same‐sex marriage from the question of whether there is a right to it in the Constitution.
Same with abortion. As Mark Joseph Stern wrote in Slate: