“Democrat” is a word seldom applied to Supreme Court Justice Antonin Scalia, but it is perhaps the term that best describes him. With a small “d,’’ of course. He sought to ensure that Americans would be governed not by life-tenured judges like himself — far removed from the will of ordinary citizens — but by their elected representatives.
The actual wording of legislation was paramount to Scalia. By requiring judges to stick closely to it, he sought to discourage them from speculating about what legislators were really thinking or what they would have been thinking had they been all-seeing and all-knowing. Such speculation would almost always be colored by judges’ personal biases. When the unambiguous text of legislation is controlling, legislators, rather than judges, are in the driver’s seat.
Scalia emphasized repeatedly that it was not up to courts to judge the wisdom of legislation and that Congress was entitled to wide latitude. In that respect, he was like Oliver Wendell Holmes, who famously wrote that “if my fellow citizens want to go to hell, I will help them.”
Up to a point. The will of Congress, as expressed in its legislation, must be subject to the limits imposed by the Constitution. Here Scalia’s importance derives from his status as the nation’s most prominent originalism proponent. The text — as it would have been understood at the time of the Constitution’s ratification — had to have primacy. It is from that ratification process that the Constitution derives its legitimacy as our supreme law.
On Saturday, the day of Scalia’s death, the Twittersphere was alive with ugly goulishness. It did not go well with Lincoln’s idea, or hope, that we Americans are “not enemies, but friends.” In the Internet age, perhaps this has to be expected when a man or woman of consequence, especially a conservative, dies. As Scalia himself once noted, “A man who has made no enemies is probably not a very good man.”
“Arrogant” is one of the kinder words critics on Twitter used to describe him. Of course, if they meant that he, like Holmes, was never one to suffer fools gladly, they are right. Similarly, if they meant that his dissents could be biting, there is truth to this. That’s why reading his dissents is such a guilty pleasure.
But if those critics meant that Scalia arrogated to himself power, they could not be more wrong. In that sense, he was remarkably modest. Few men or women who wish to enter public office intend to cut back on their own discretion when they get there. Fewer still follow through with such an intention.
The misunderstanding may in part the result of the emotional issues with which the Supreme Court routinely deals. Scalia’s detractors point, for example, to his dissent in Obergefell v. Hodges — the 2015 decision holding same-sex marriage to be a Constitutional right — and call him a “homophobe” or “heartless.” But Scalia’s point was simply that the Constitution neither mandates nor prohibits same-sex marriage. Any decision to adopt it should therefore come from the ballot box, not from the judicial bench. That is neither homophobic nor heartless; it is democracy.
Did Scalia sometimes fall short of his aspiration to keep his policy preferences out of his legal analysis? Was he sometimes too deferential to the government’s political branches? These are questions that scholars will be hashing over for generations to come. One thing I suspect will be uncontroversial: Scalia was among the most consequential jurists in American history. I hope that also he will one day be universally acknowledged and respected as a true friend of democracy.
Gail Heriot is professor of law at the University of San Diego and a member of the US Commission on Civil Rights.