American Jeremiah: The Legacy of Justice Antonin Scalia

There seems to have been a sort of cosmic symmetry in Scalia’s passing away as he did following such faithful labors.  He left us quietly, in his sleep, out on a secluded resort in west Texas whose main attractions were hiking and stargazing.  Amidst this spectacular creation, Scalia left his country and world to gain his reward for giving voice to truths that will always be consulted whenever a nation finds itself, as we do, staring into the abyss.

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By Andrew Thomas | February 15, 2016

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Photo: Gavin Averill/Hattiesburg American via AP

Most of the commentary on the passing of Justice Antonin Scalia has come from writers politically opposed to his work.  Naturally, they have given short shrift to much of what conservatives held dearest about him.  Justice Scalia was far more than a rigorous intellect, a witty raconteur in oral argument, or the finest writer on the court since Oliver Wendell Holmes.  Contrary to conventional wisdom, he was not even necessarily the court’s most steadfast conservative (Justice Clarence Thomas contends for that title).

Scalia, indeed, was not so much an originalist as an original.  His contributions were unique and genuinely of both mind and spirit.  As he witnessed his beloved American civilization disintegrating, and saw most leaders—even conservatives—settling for being a respectable Stephen Douglas instead of a fiery John Brown, Scalia gave full intellectual throat to the woes of a great nation in distress.  His brilliance, orthodoxy and combativeness were very rare qualities in isolation.  When combined in one person, they were almost unheard of.

The stock journalistic description of Scalia as an “originalist” is misleading.  Originalism is the school of thought that holds judges should interpret the Constitution based on the intentions of the Framers of that document.  Yet, Scalia himself tempered the application of this label to himself, insisting with typical humor, “I am not a nut.”  Scalia actually espoused textualism, a different theory.  Textualism allows for interpreting the Constitution based on the meaning of its words.  No less than Humpty Dumpty in Lewis Carroll’s Alice in Wonderland instructed us that words, divorced from the intentions behind them, can be used for ill purposes; presumably this is why, as Jeffrey Toobin noted, virtually all other members of the court embrace such textualism, for this allows a certain judicial malleability.  Scalia strictly used this flexibility to preserve, in his own way, traditions the Framers honored and that few others would defend.  In his commitment to this mission, he showed no flexibility at all.

The shadow Scalia casts on the American legal landscape is long and rooted in personal and professional virtues.  By all accounts he was a genuine model of family life.  His work and writings reflected this integrity of purpose.  Scalia also was a remarkably affable public figure.  Much has been made, rightly, of his curious but genuine friendship with archliberal Justice Ruth Bader Ginsburg.  His overall generosity also has sparked commentary.  (This writer can add to it by noting he gained from Scalia both an autograph while in law school and, years later, an interview in Scalia’s Supreme Court chambers while writing a book—both notable concessions of time and person.)

What will stand, even more than his strictly legal pronouncements, were Scalia’s searing words—about the nation that reared him, a nation he saw slipping away.  These words were precise, unsparing, poignant.  As a chronicler and critic of the decline of American civilization in the late twentieth and early twenty-first century, Scalia had no peer.  He used his court opinions—often, necessarily, dissents—to cast thunderbolts down onto a nation whose trajectory he hoped to change.

Culling the most meaningful quotations from his three decades of jurisprudence is a hopeless exercise, for it requires exclusion of prose that was still superior to anything his colleagues wrote.  Yet a sampling gives a flavor.

On illegal immigration, Scalia wrote the court’s gutting of state laws targeting this influx “deprives States of what most would consider the defining characteristic of sovereignty:  the power to exclude from the sovereign’s territory people who have no right to be there.”

On a Supreme Court ruling that eroded capital punishment:  “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.”

On abortion rights:  “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

On the court’s decision to redefine marriage, from his last great dissent:  “with each decision of ours that takes from the People a question properly left to them . . . we move one step closer to being reminded of our impotence.”

Scalia’s dissent in United States v. Virginia is especially fascinating.  In opposition to the court’s directive that the all-male Virginia Military Institute admit women, Scalia quoted at length, quaintly, from a booklet handed out to the school’s cadets.  Entitled “The Code of a Gentleman,” and as quoted by Scalia, the “period piece” instructed that a gentleman “does not go to a lady’s house if he is affected by alcohol,” “does not display his wealth, money or possessions,” “does not speak more than casually about his girlfriend,” nor “‘lick the boots of those above’ nor ‘kick the face of those below him on the social ladder.’”  Scalia ended his dissent: “I do not know whether the men of VMI lived by this code; perhaps not.  But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so.  I do not think any of us, women included, will be better off for its destruction.”

Examples of his rhetorical wizardry are virtually endless, as Scalia routinely compressed passionate eloquence into words and logic in a way few leaders have.  The phrase that arguably best captured his laments was written, almost as a postscript, in an otherwise forgotten case about employment law.  Scalia observed, “Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize.”

There seems to have been a sort of cosmic symmetry in Scalia’s passing away as he did following such faithful labors.  He left us quietly, in his sleep, out on a secluded resort in west Texas whose main attractions were hiking and stargazing.  Amidst this spectacular creation, Scalia left his country and world to gain his reward for giving voice to truths that will always be consulted whenever a nation finds itself, as we do, staring into the abyss.


Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected Maricopa County Attorney, the district attorney for metropolitan Phoenix, Arizona, Thomas ran one of the largest prosecutor’s offices in the country, successfully combating crime and illegal immigration.  Thomas ran for governor of Arizona in 2014, receiving endorsements from many conservative leaders.  The author of four books, including Clarence Thomas: A Biography, he is currently a fellow with the Selous Foundation for Public Policy Research and a contributor to SFPPR News & Analysis

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