Opinion

Opinion | Laurence H. Tribe

The legacy of Antonin Scalia — the unrelenting provoker

Jim Mone/AP/File 2015

Justice Antonin Scalia’s untimely passing has deprived us of a great legal mind. But the justice leaves behind a remarkable legacy — even if not quite the one he might have sought. He once said, only partly in jest, that he preferred a “dead” to a “living” Constitution: for him, the whole purpose of a Constitution was to nail things down so they would last — to “curtail judicial caprice” by preventing judges, himself included, from having their way with the law rather than doing the people’s bidding as expressed in binding rules. Yet Scalia managed, sometimes despite himself, to bring our Constitution — and the project of interpreting it — to life more deeply than have many whose overt ambition was to espouse a “living” Constitution.

Rarely able to command a court majority in the battles he cared most about, Scalia performed this revitalizing role mainly through his powerful and frequent dissents. A century before Scalia arrived at the Supreme Court, Justice John Marshall Harlan earned the nickname “The Great Dissenter” for his bravery and foresight in standing, sometimes alone, against the court’s worst decisions — including Plessy v. Ferguson, where Harlan forcefully argued that “all citizens are equal before the law.” Scalia cannot claim such a legacy of egalitarian inclusion. Yet he will be remembered as much for his dissents as for his successful reorientation of how lawyers and judges interpret legal texts.

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If Harlan was “The Great Dissenter,” then perhaps Scalia was the “The Unrelenting Provoker.” By forcing his ideological adversaries to engage with his ideas, both through his intellectual rigor and through personal charisma, Scalia reshaped and enriched legal discourse on the court, in the legal academy, and throughout the legal profession. In turn, he won the war even when he lost his hardest-fought battles. As Justice Elena Kagan once said of his approach to statutory interpretation: “We’re all textualists now.”

Scalia’s elevation of enduring dialogue over transitory outcomes was more than just a by-product of his passion for the law and his now-legendary defiance in the face of defeat. Rather, Scalia consciously pushed his colleagues to produce their best work. He was criticized, sometimes justly, for caring more about the law’s logic than about its human impact. But, to his credit, he held fast to the conviction that departing from what he saw as the rule of law would do more harm than good in the long run. Two days after the justice’s death, David Axelrod, former adviser to President Obama, revealed that, when Justice David Souter retired, Scalia said: “I have no illusions that your man will nominate someone who shares my orientation. But I hope he sends us someone smart.” That was vintage Scalia: More committed to the rigors of energetic debate than to emerging victorious, he helped keep the Constitution alive.

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But admiring Scalia’s brilliant movement of text, structure, and history into the center of the nation’s constitutional conversation doesn’t entail agreeing with where he thought his methods necessarily led. Method doesn’t determine, much less eclipse, outcome when the court confronts difficult questions with so many vital variables in play — including the deepest values of personal liberty and equal justice underlying the Constitution’s broad language and the core principles it embodies.

There are scholars and judges — including some still sitting justices and those who sat with Scalia but have since left the court (Justices Souter, John Paul Stevens, and Sandra Day O’Connor) — who are no less faithful than their departed colleague to the original concepts that animate our Constitution and laws, and no less careful than he was in following those principles to legally defensible conclusions. But for those scholars and judges, our laws are more inclusive, more sensitive to oppression and inequity, and more compatible with changing social realities.

The Supreme Court’s gun rights decisions dramatically demonstrate that method isn’t everything. Scalia and Stevens used the same “originalist” and “textualist” methods to reach opposite conclusions about the meaning of the Second Amendment’s “right to bear arms.” Scalia’s opinion for the Court in District of Columbia v. Heller and his concurrence in McDonald v. City of Chicago reasoned that the amendment doesn’t just protect the “well-regulated” state “militias” described in the amendment’s preamble as “necessary to the security of a free State,” but protects personal gun ownership from all government infringement as a facet of the “liberty” of self-defense. Dissenting, Stevens argued that the preamble circumscribed the text and unearthed potent evidence that the “original public meaning” of the right was limited to preventing the federal government from disarming the state militias.

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The justices fought on the common methodological battleground of text and original meaning, but Stevens would have used Scalia’s method to reach an outcome that, among other things, weighed public safety against unbridled individual liberty. Many historians found Stevens’s originalist arguments more convincing than those of Scalia, whose opinions relied heavily on events both before and after the Founding. That Scalia’s methods can point in such different directions only highlights their indeterminacy as applied to the complex issues reaching the court.

But debates over Scalia’s interpretive methods and reflections on his brilliant style shouldn’t distract us from the most important consideration of all: the unavoidably political task of selecting a justice to serve for life and to cast often decisive votes on questions of liberty, equality, dignity, and the structure of a government dedicated to those values. The stakes couldn’t be higher: They include voting rights and reproductive choice, gay rights and affirmative action, states’ rights, and prisoners’ and immigrants’ rights. Those stakes must be uppermost in the president’s mind, the mind of every senator, and the mind of every voter at this crucial constitutional moment.

That elections have consequences has become a cliché, but many who incant it to demand that President Obama leave the current vacancy unfilled, and the court deadlocked until well into 2017, recklessly and insultingly ignore both this president’s election by a margin of over five million votes in 2012 and the Constitution’s explicit command that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” What about the word “shall” don’t they understand?

Laurence H. Tribe is a university professor and professor of constitutional law at Harvard Law School.
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