As he toured America in the 1830s, de Tocqueville was stunned by the fact that normal Americans—not just public officials and lawyers—constantly and vehemently argued about law and politics. The average citizen was "attached to [the law] by a kind of parental affection" because he, however indirectly, helped make it. And discussing politics, de Tocqueville wrote, is "the only pleasure an American knows."
In an age of "safe spaces" and "trigger warnings," it isn’t clear we have these virtues any longer. With the death of Antonin Scalia, the nation lost not only a great Supreme Court justice, but also an exemplar of this increasingly rare American type.
Scalia was out there, upfront and brash, and welcomed arguments from all comers. This was, he thought, how all Americans should be. How else could a free society function? When a group of Washington voters sought to sign a referendum petition without publicly disclosing their names and addresses, Scalia had little sympathy:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.
This Scalia—frank, uncompromising, and worried for the future of America—is on full display in Scalia’s Court. A collection of the justice's legal opinions, it is organized by animating topic: abortion, race, separation of powers, and the like. Kevin Ring, the editor, is former counsel to John Ashcroft, and has experience with this sort of project—he compiled a similar 2004 anthology of Scalia's dissents. Ring's presence in Scalia's Court is minimal. He limits himself to brief introductions to each case, removing footnotes and particularly complex passages from Scalia's writing, and a short essay on Scalia's judicial philosophy.
This is fine insofar as it goes, and makes Scalia's Court a nice introduction to the justice for those without legal expertise. For those with more experience, Ring's approach will be less satisfying. In particular, by separating Scalia’s majority and dissenting opinions from those of his colleagues, Ring robs serious readers of context, which is essential to understanding the law and necessary to fully appreciate Scalia.
This is because Scalia was a reactionary, in the neutral, non-derogatory sense of that word. The object of his ire was the increasingly imperial court of the 1960s and 70s, dominated by his intellectual nemesis, William Brennan. Though Scalia joined the court at the tail end of Brennan’s tenure, the far-reaching and radical decisions of Brennan’s heyday lived on as precedent. And they exerted a baleful influence on some of Scalia’s colleagues. The thrill of Scalia’s writing comes from his willingness to skewer the pretensions of these cases and the newer ones that took after them, and reveal the anti-democratic spirit that animated both. One has to be familiar with his rivals’ source material to get the high.
The point of this give-and-take wasn’t immature score-settling. As the justice himself observed—he praised John Paul Stevens for giving "the dissenter [often Scalia] the respect to respond to the points that he makes"—judicial opinions should involve a dialogue with the opposition.
Such dialogue is missing from Scalia’s Court, which deprives the reader of half the fun of reading Scalia. That being said, the opinions in Scalia’s Court retain great power on their own. Scalia possessed two traits that most judges don’t: writing ability and a literary imagination. These qualities made his opinions accessible to the general public and were the basis of his out-of-court celebrity.
Scalia created set pieces, veered from the technical to the colloquial in the span of a few sentences (one majority opinion was "pure applesauce"; another used "legalistic argle bargle" to achieve a desired result), and wielded humor to keep attention and press his point:
This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made."
Of course, he wasn’t above error. Denying the obvious was never a good fit—"The substance of today’s decree [that gay couples have a constitutional right to marry] is not of immense personal importance to me"—and neither was playing up his populist bona fides:
The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners.
This, from a man who began his career at Jones Day!
But when Scalia was at full steam, the result was unlike anything the American judiciary had seen since Oliver Wendell Holmes:
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution."
This passage is from his dissent in Planned Parenthood v. Casey, the case that upheld Roe v. Wade. That Scalia’s most eloquent writing is found in a dissent isn’t an anomaly; indeed, his dissents take up many of the pages in Scalia’s Court. This is important for two reasons, one related to his skill as a writer; the other to his legacy.
Praise of Scalia’s prose must be tempered by the fact that many of his big-ticket opinions were dissents. Clear and consistent pieces are much easier to produce when a judge is writing by himself. By contrast, a judge writing a majority has to include other judges in the process, which can result in unworkable opinions made by committee.
The more interesting question, though, is why Scalia was so often in dissent. It may have been his choice. Perhaps he preferred dissenting (or concurring) in a logically coherent opinion to prevailing in a messy or illogical majority. Or, it might not have been his choice at all. On many occasions, he probably just didn’t have the votes. But on others, some of his colleagues may have refused to join him because of his insistence on doctrinal clarity and his take-no-prisoners style.
Ring dismisses this theory by claiming it requires the belief that "[t]here were justices of the United States Supreme Court . . . who were voting not in accordance with the Constitution as required by their oaths but out of anger or hurt feelings." Yes, exactly. Supreme Court justices are people too, and people do dumb things.
Regardless of why Scalia often wrote dissents, the fact is this: after his almost three decades on the court and status as the judiciary’s intellectual lodestar for much of that time, the American Constitution still guarantees the right to an abortion, sanctions discrimination against whites and men, and largely prohibits displays of Christian belief in public institutions.
So, in some respects, things aren’t going Scalia’s way. The justice himself clearly knew this, writing in a 1996 dissent that the court was busy "designing a Constitution for a country I do not recognize." He revisited the same theme in a 2009 interview: "The wins: damn few."
Yet, as the opinions in and outside of Scalia's Court attest, Scalia substantively changed the law—in areas as diverse as gun ownership, the right of a criminal defendant to confront the witnesses against him, and the regulatory taking of real estate. And, as soon-to-be Justice Elena Kagan said in 2007, "[Scalia] is the justice who has had the most important impact over the years on how we think and talk about law." His influence is reflected in countless federal and state court opinions. Many judges now avoid basing their decisions on secondary sources, such as legislative history and law review articles, and focus instead on the statutory text. This shift is likely to be a lasting one.
And as for the issues Scalia felt he lost—it is too early to tell. Just as Brennan lives on through his precedents, so too does Scalia through his dissents. Scalia repeatedly stated that he wrote them for law students, to engage, and perhaps win over, the next generation of lawyers and judges. As this cohort enters positions of power, it is quite possible that Scalia, who raged against the idols of his age, created a remnant that will tear down those idols in the years to come.