By:

LeRoy Goldman

Guest Columnist

February 21, 2016

Scalia was a man for all seasons

BlueRidgeNow.com

With all respect to John Roberts, the Supreme Court has lost its chief justice. The tragic and unexpected death of Antonin Scalia will have consequences that go far beyond what's being reported in the press. 

Those reports focus on the fact that the high court is now deadlocked in a 4-4 ideological split between liberals and conservatives, and that the president and the Republican-controlled Senate are deadlocked over how and when to fill Scalia's seat.

In fact, the philosophical deadlock within the court and the partisan political deadlock between the president and the Senate stand as proxies for the disintegration of the federal government over the past quarter-century. That this deadlock goes beyond the president and Congress to the Supreme Court is especially troubling.

One does not have to be brilliant or superbly well educated to know that the words on the west and east pediments of the Supreme Court, “Equal Justice Under Law” and “Justice The Guardian Of Liberty,” ring hollow when the people see the court and its decisions in major cases as simply a zero-sum game reflecting the nation's political polarization.

The spectacle that is about to unfold regarding the president's nomination of an individual to fill the vacancy and the Senate's action thereon will be disgusting political theater of the absurd. Moreover, it will be the opening move on the political chessboard that will likely be repeated three or four more times during the tenure of the next president. That is a genuinely terrifying prospect.

But that is where we are, and it is also why the sudden and unexpected loss of Scalia is so harmful. He was head and shoulders above his colleagues on the court in many ways. But it was his superiority in one realm that made his role on the court unique. Whether one agreed with Scalia or not, there is no doubt that he reached his decisions because he had an organizing theory that guided his reasoning, decision-making and writing.

That theory is a combination of originalism and textualism. Scalia's use of those two principles led him to argue that the interpretation of the Constitution or a law should be based upon its text and what reasonable people at the time of its adoption would have defined its meaning to be. This approach generally rules out any attempt to interpret the meaning of a statute by relying on non-textual sources such as legislative intent.

Perhaps the most powerful and imaginative use of originalism and textualism by Scalia was that it provided him with a way to successfully confront what he believed were the excesses of liberal jurists dating to the Warren court. Scalia and other conservative justices took umbrage as liberal judges infused their own ideological views into their opinions as scantily clad constitutional law.

Geoffrey Stone, professor of law at the University of Chicago, wrote recently that a way to prevent this abuse would be “for judges to take a consistently deferential approach to the judgments of the elected branches of government.” But such an approach creates a new problem. Stone wrote, “But Scalia and his fellow proponents of originalism recognized that such an across-the-board commitment to judicial restraint was inconsistent with the understanding of the framers of our Constitution, who clearly anticipated that judges play an important role in enforcing constitutional guarantees.”

Thus, the challenge was how to navigate between the need to sometimes be deferential and the need to sometimes be aggressive. Scalia's brilliance enabled him to successfully navigate these constitutional cross currents. His approach was breathtakingly simple. Use restraint unless the original text mandated otherwise.

Thus, Stone argued that “it would be appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African-Americans the right to serve on juries, but not to invalidate laws that deny gays and lesbians the right to marry, because the latter was not in any way anticipated by the 'original meaning' of the Equal Protection Clause.”

Scalia was an American original, “A Man For All Seasons,” like Sir Thomas More who, as you will recall, was the 16th century lord chancellor of England who refused to sign a letter to the pope urging him to annul the marriage of King Henry VIII to Catherine of Aragon so the king could marry Anne Boleyn. More's resistance cost him his life, and near its end he said, “And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?”

I can see the irrepressible smile on Scalia's face and the twinkle in his eyes as he paraphrases Sir Thomas More to the court's four horsepersons of the left.

LeRoy Goldman is a Flat Rock resident. Reach him at:  EmailMe

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