Justice Scalia’s life and the law

Printed from: https://newbostonpost.com/2016/02/14/justice-scalias-life-and-the-law/

We should all be so lucky to live the life that Antonin Scalia did.

When Justice Scalia passed away in his sleep this weekend, he left behind a loving wife, nine children, and 28 grandchildren. He left behind numerous friends: with a ready wit and a garrulous laugh, he was well liked by his colleagues on the Supreme Court and countless others besides, liberal and conservative alike. Judges as a group tend to be cerebral and introverted, but few in any profession could work a room quite like he did.

Throughout his life he did what he enjoyed: drank wine, smoked cigarettes, ate greasy pizza, drove fast cars and went hunting. The National Institutes of Health might consider studying how he lived to be nearly 80 years old.

In person, he was a charmer. I was fortunate to serve as one of his law clerks from 2000 to 2001. During that year, he regaled us with anecdotes from his (already at that point) nearly three decades of government service, and jokes typically inspired by the Godfather movies. He graciously entertained my parents when they visited me at the Court, and he and his wife Maureen had all of the clerks and their spouses to their home in Virginia for a wonderful dinner.

Of course, the Justice will be remembered most for the mark he made on the law during his nearly 30 years on the Court. Invariably the most well written and insightful opinions in cases involving hot button topics, whether in majority or dissent, would bear the Justice’s name. The Justice wrote a book, “A Matter of Interpretation,” that is a must read for anyone interested in constitutional law. I cannot count the number of times liberal friends and colleagues confided their admiration of the Justice as an intellect and as a writer, even as they disagreed with his votes.

Focusing on Justice Scalia’s decisions on particular issues, however, would miss the forest for the trees. It was his overall approach to judicial decision-making that inspired a generation of young lawyers and will serve as his most lasting legacy.

The Justice’s approach is sometimes called “originalism” and sometimes “textualism,” but the point is the same: a written law should mean what it was understood to mean at the time it was enacted, and no more. This might seem obvious, but it was not the prevailing view when Justice Scalia joined the Court in 1986 and remains a minority view among law professors today.

The Justice’s adherence to text and original understanding was no quirky fetishization of language. Rather, it was one embodiment of a fundamental commitment to the concept of democracy.

It is an innovation of American democracy that judges can decide whether democratically-enacted laws run afoul of some background set of principles — the Constitution — and thus cannot be enforced. Generally speaking, if the British Parliament wishes to enact some new law in 2016, it can enact that law. In America, on the other hand, a court might conclude that a law enacted by today’s Congress transgresses a clause placed by “dead white guys” in the Bill of Rights more than 200 years ago, and so strike the law down.

In a democracy, this restriction on the ability of current majorities to govern themselves only is tolerable because each state democratically agreed to adopt the original Constitution, and each amendment since then (e.g., the Bill of Rights) was democratically proposed by a past supermajority of Congress or the states, and democratically ratified by a supermajority of the states. Thus, when the Supreme Court strikes down a law, it is actually acting democratically:  enforcing the judgment of a past supermajority against that of a current mere majority (or a national supermajority against a recalcitrant state). If we current citizens of the United States disagree with our forebears, the Constitution includes a democratic amendment process.

Justice Scalia’s point, which he hammered again and again, was this: that any democratic legitimacy underlying judicial review is lost, if judges do not limit themselves to enforcing the Constitution as those who enacted it understood it. If the Court strikes down laws governing (for example) abortion or the definition of marriage, in the absence of any evidence that the Framers of the Constitution understood themselves to be limiting the ability of future majorities to legislate concerning such topics, then the scope of democratic self-government has been diminished at the mere whim of a handful of judges.

At heart, this is a humble approach to judicial decision-making, allowing the people to decide how best to govern themselves when the Constitution’s text and history provide no clear guidance to the judiciary. By leaving more issues open for the people to decide it diminishes the importance of individual judges, such that the death of a justice would not immediately lead to fevered speculation over his replacement.

It perhaps is no surprise that the foremost proponent of this theory of judicial restraint was a self-effacing family man, always ready with a joke at his own expense, whose friendships were not dictated by his political views. Rest in peace, Justice Scalia.

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. You can read his past columns here.

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