Several years back, a poll in the U.K. asked respondents to name history’s greatest enemy of the British Empire. The winner of the poll was George Washington. As an American then living in England, I was delighted by the choice. The British people inadvertently paid Washington a great honor, for they named him the bane of an empire, which, at least in his time, had become an enemy of liberty. Washington was, as the poll unwittingly acknowledged, a truly great man.
Societies, even exceptional ones, produce great men sparingly, and true greatness seems to be in particularly short supply these days. Alas, the supply grew even shorter last Saturday. It was then that Supreme Court Justice Antonin Scalia died.
It is not difficult to find homage to Scalia on the Internet. There are lists of his most notable takedowns of opposing points of view, discussions of his finest juridical achievements, paeans to all he has meant to the highest court in the land. My offering will differ from many of these, examining instead the foundation or fundamental character that made him great. That foundation was his approach to authority.
Scalia was a good Catholic, and a sine qua non of good Catholicism is the recognition that one is under authority. Under God, under the pope, under authority. In his vocation on the Court, he also rightly saw himself as under authority – that of the United States Constitution. First and foremost, the Constitution separates the various powers inherent in government. The power of the Court is not the power to make laws, nor is it the power to execute them. Those powers the Constitution reserves to those who must face political consequences for infidelity, overreaching, or foolishness.
The judicial power, that of interpreting the law and applying it to particular cases, is at once greater and, more importantly, less, than the legislative and executive powers. It is greater in that it can undo what the other branches have done. Carried out properly, it is the last defense against predatory, unconstitutional government, save the people themselves. It is less than the others because it rightly can do nothing against unwise government, unenlightened government, or even unjust government, to the extent the injustice is lawful under the Constitution. Scalia understood all of this, and lived it. His judicial conservatism was, above all else, a refusal to violate the Constitution’s separation of powers, to extend his own power beyond its authority.
Scalia might have chosen otherwise, reading his own ideas, or those of the modern world, into the Constitution. Had he done so, he would have been a bright but otherwise unremarkable adherent of today’s dominant judicial philosophy of constitutional progressivism, the belief that the Constitution is a living or evolving document. He described the living Constitution as “a document whose meaning changes to suit the times, as the Supreme Court sees the times.” He regarded this progressivism as “profoundly undemocratic” for its effective judicial confiscation of legislative powers (or, as he said, “super-legislative”), and likened it to a cancer. He was remarkable because he chose instead the path of originalism or textualism, interpreting the Constitution to mean today what it meant in its original context. This placed him under the authority of the framers’ ideas as enshrined in the Constitution, and most importantly under the Constitution’s separation of powers. It placed him under authority.
Justice Scalia’s approach to authority was also of central importance in that he did not shy away from carrying out the authority he did have. He was not merely a professor or a pundit, free to comment flippantly or thoughtfully as he saw fit at the moment. He carried the weight of his office honorably: agreeably and efficiently taking on his share of the countless mundane tasks of the Court that never make it into the public consciousness, while fighting publicly and unrelentingly to preserve democratic government under law, including the fundamental law of the Constitution. He excoriated progressivist depredations, lamenting for instance in Obergefell v. Hodges that “today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” In his most notable judicial pronouncements, it seems he sought to drag the whole Court, indeed the whole government, kicking and screaming back to its rightful place under the authority of the Constitution. A herculean task, carried out by an intellectual Hercules.
Finally, Justice Scalia knew who and what did not hold authority over him, and he refused to let himself fall under their sway. He did not seek to please the mainstream press, or Hollywood, or law professors at Harvard or Georgetown, or even the President. He rejected, in essence, the authority of the culture. This rejection, and his unapologetic expression of it, made him not only unpopular but positively vilified by many progressivists (one notable exception being his personal friend, progressivist jurist Justice Ruth Bader Ginsberg). My first exposure to Scaliaphobia came in 1991, during my first semester of law school. I didn’t yet know much about Scalia, but when I expressed agreement with the good Justice on an obscure case, my more enlightened peers ridiculed me. I grew to bask in such ridicule, marveling at the feverishness of progressivist hatred toward the man. And not even his death has stemmed the flow of venom, as news of it was met with numerous Twitter posts cursing him to Hell.
Such hatred, now as then, reveals more than is intended. For if those who would eviscerate the Constitution, that most laudable of human documents, have viewed Scalia as their greatest enemy, then they have unwittingly honored him as great. Just as the British did for Washington. We will miss you, Justice Antonin Scalia. I will miss you. For the loss of a great man always comes too soon.
Dr. Dawn is Associate Professor of History and Political Thought at Concordia University Irvine