Sometime in the near future, the official Supreme Court portrait of Justice Antonin Scalia will be transported from Harvard Law School to be hung on the marble walls of the Supreme Court building in Washington D.C. Once there, visitors will be able to see what portrait artist Nelson Shanks saw in his subject.
The painting depicts the justice sitting in his judicial gown at his desk with his hand resting on a stack of books. At first glance it is a somewhat routine judicial portrait. But for Nelson Shanks, it is in the background details of his portraits that he inserts images that reveal the deeper truths of his subject’s life. The books upon which Scalia rests include Webster’s “Second International Dictionary” and “The Federalist Papers,” volumes that represent the cornerstones of Scalia’s twin judicial decision-making theories. The first represents his textualism, using dictionaries to determine the meaning of the words in the Constitution or its Amendments or the statutes being interpreted. The second symbolizes his “originalism” theory, through which Scalia sought to limit the activism of judges by holding them to the Founding-era “public meaning” of the Constitution and the Bill of Rights as understood by the people in the state ratifying conventions.
Beneath the books hangs a print of the well-known, oak-panel portrait by Hans Holbein the Younger of one of Scalia’s personal heroes, Sir Thomas More. More, the Lord High Chancellor of England who lost his head, literally, after clashing with King Henry VIII over his divorce from Catherine of Aragon to marry Anne Boleyn, is a patron saint of lawyers in the Roman Catholic Church.
Scalia, a life-long, devout, pre-Vatican II Catholic, often spoke of his admiration for More, and wore a reproduction of his puffy wool hat to President Barack Obama’s Second Inaugural. By including this element, Shanks acknowledges the religious views that informed the justice’s decisions in many controversial social issues cases such as abortion, gay rights, and the death penalty.
Scalia was appointed to the Court by President Ronald Reagan in 1986 and was expected to galvanize the conservative wing under the chief justiceship of William Rehnquist. Instead, he became a “Court of One,” driving the moderate-conservative justices away from his side, and splitting that wing of the Court. Off the court, Scalia adopted the role of an outspoken legal academic, arguing against those who followed “the living, evolving Constitution” approach used by generations of justices to apply the document to changing times.
As a result, the real power of the Court lay not with Scalia, or even in the conservative majority that existed throughout his tenure as a justice, but with the more moderate swing justices, such as Sandra Day O’Connor, David Souter, and Anthony Kennedy, who dictated how far the Court’s decisions would go. Frustrated by their decisions, Scalia once complained in a 1996 dissent in a case dealing with political patronage that his judicial colleagues were “day by day, case by case . . . busy designing a Constitution for a country I do not recognize.”
While Scalia’s full legacy has yet to be grasped, two of his majority opinions, Bush v. Gore and Heller v. District of Columbia on gun rights, and his input on Citizens’ United v. Federal Election Commission, will remain among his most memorable contributions. Beyond the Court, no other justice in history has made such an effort to bring his views to the public through his constant speeches, his clever turns of phrase in cases (such as “legalistic argle-bargle”, or “interpretive jiggery-pokery”), his controversial and highly quotable questions from the bench during oral arguments, his frequent interviews with journalists, and his books, through which he offered his interpretation of the Court’s work.
The result has politicized the Court and made it a target of attack. Meanwhile, an army of young conservative lawyers and law students, all educated through his opinions, speeches and books, might yet become his greatest legacy in shaping the long-term future of the legal system.
In the end, the timing of his departure, opening up a seat on the narrowly divided five-to-four Court for a Democratic president to name his successor, might represent, to what would have been his dismay, his most immediate legacy.
If President Obama is successful in having his nominee confirmed, the ideological direction of the Supreme Court, that has been under conservative domination since 1970, will change. The ultimate irony might come if a new, liberal majority uses Scalia’s originalism theory to find, in a different set of Founding-era historical documents, a rationale for expanding rights under the Constitution.
The “Constitution is dead. Dead. Dead. Dead,” Scalia once said. But the Justice’s intellectual legacy, the eloquent fire of his dissents, and the memory of his unique and charismatic work on the Court, will remain alive for the ages.
Bruce Allen Murphy is a professor of government and law at Lafayette College and the author of “Scalia: A Court of One.”