Setting aside for the moment political and ideological considerations, it is with honor and reverence to note the passing of Justice Antonin Scalia, a Great American who died Saturday after serving on the United States Supreme Court for 30 years. For better or worse, and often in dissent, Justice Scalia had as large a mark on the court and on American law and politics as any justice since Earl Warren, Charles Evans Hughes and John Marshall. As a constitutional originalist and a statutory textualist, Justice Scalia opposed much of the social and political progress of the late 20th century. Ostensibly, Justice Scalia did not believe the constitution is a living document to be interpreted in the context of current times. He felt that if it needed updated to accommodate modern thinking or even technology, that it should be amended by the representatives of the people. Unfortunately, Justice Scalia’s legal decisions had cold, hard consequences for too many people, and this is despite the fact that personally he was a warm, caring and gregarious human being – close friends with his ideological opposite, the notorious RGB, Justice Ruth Bader Ginsburg. But its not that simple. As with most people, Justice Scalia did let his values infuse his decisions. He used his originalist methodology as a shield which he could deftly drop in order to launch an argument that suited his conservative philosophy. A flawed, but Great American, perhaps he could have rounded his rough edges if he had real world experience representing living, breathing clients with real legal problems.
I always found Justice Scalia’s opinions an absolute pleasure to read and his interviews insightful, even while I often disagreed with his positions. Whatever ones constitutional philosophy, every attorney should read Justice Scalia’s excellent book on legal writing, Making Your Case: The Art of Persuading Judges (2008). In this magnificent book written with Professor Bryan Garner, Scalia teaches us in an entertaining and simple manner to write clearly and concisely in order to persuade. It is helpful for more than writing, it advises on organizing one’s thoughts.
As a constitutional originalist, it is interesting to consider what Justice Scalia would think of the Republican senate’s politically motivated decision to refuse to honor its constitutional obligation to vote on a successor nominated by President Obama?
Question for every GOP candidate: If elected, will you pledge to not nominate any SCOTUS justice in the 4th year of your term?