Scalia’s Death

It is hard to imagine America without Antonin Scalia. Hero to conservatives, bête noire to the left, Scalia was a judge unlike any other judge in the history of the Republic. And his death seems momentous in a way that other events in the life of the Republic in recent years have not. There will be more politicians, more elections, more crises, domestic and international, and more wars. (At least until the Lord returns and this world passes away.) But there will not be another Scalia. And we have lost something with his passing that we will not likely get back.

We recall, on June 26 last year, when the Supreme Court handed down its decision in Obergefell v. Hodges, scrolling quickly past the majority opinion and Chief Justice John Roberts’s dissent to get to Justice Antonin Scalia’s dissent. We assumed, given the indications of Justice Kennedy, that the majority decision would say that marriage extended to same-sex couples. We assumed that Chief Justice Roberts would deplore the way in which the decision was reached. And we didn’t really care. What we wanted to see was what Scalia had to say. And his dissent in Obergefell was a barn-burning attack on the reasoning (or lack thereof) of the majority opinion.

It was not the first time that we wanted to see what Scalia had to say first. And we were not alone in skipping the boring parts to see the fireworks. (Unfortunately, like the professor he was at heart, Scalia punished those of us who didn’t read the majority opinion by referring to it and quoting from it at length, requiring us to scroll back up repeatedly to see what he was talking about.)

It is unlikely that any other justice on the Supreme Court occupied the imagination of the public—lawyers and laymen alike—quite the way Scalia did. His public persona—blunt, witty, and brilliant—was balanced by stories of his devotion to Christ and Christ’s Church, his unlikely friendship with Ruth Bader Ginsburg, and his role as patriarch of a large family. Some of our acquaintances in the Washington area reported seeing Scalia regularly at the traditional Latin Mass offered at Mary Mother of God. But above all of this was his reputation as a writer: usually incisive, often witty, occasionally caustic, but always clear and always tightly reasoned. And we imagine that judges across the land, at every level, took a cue from Scalia and started expressing themselves and their views clearly and directly, too. (And some state courts we could name have, we think, very mightily struggled to avoid Scalia-style opinions. But even this is a testament to his influence.)

Even people who did not especially like Scalia were impressed by his incisive intellect. We had a very slight connection to him—to outline it would be a little gauche, so we’ll say it was on the order of a friend of a friend or something like that—and the impression we got was that he was blunt, witty, and brilliant, even as a young man. But the impressive thing is how many people, even his ideological adversaries, liked Scalia tremendously. There was something about his “Italian from Queens” style that was charming and disarming, even to his opponents.

And for all these reasons, as we noted above, Scalia’s death seems momentous in a way that other events in the recent life of the Republic have not. Perhaps coming very near the reason why, at First Things, Elliot Milco has a brief appreciation of Scalia. He writes,

Antonin Scalia was a hero to me, as he was to thousands, perhaps millions of conservative Americans. He was brilliant. He was morally engaged. His prose sparkled. He was the great champion of the Right, and he could not be silenced or voted out, no matter how much the press despised him. While his enemies pushed relentlessly to have their views enshrined as fundamental principles of free society, Scalia fought to keep the moral question open for debate, to maintain the possibility of reasonable dissent, because he believed that in a fair fight, we could still prevail. He was the mighty rearguard in our long and slow defeat.

The passing of Antonin Scalia is the passing of a great figure in American political life—a true jurist of the sort rarely seen in recent decades. For those of us on the Right, the death of this great man is devastating. In the past forty years the Supreme Court has been the site of so many crucial revisions of the fundamental law of our government. Who can say how his successor will affect the balance of power in this country, or for how long? Without him, or someone like him, we can guess what’s to come. More revision, more exclusion, more decay.

(Emphasis supplied.) This seems correct to us. It is unclear to us that anyone else could step into the breach and mount the thunderous defense of reason and justice that Scalia did for so long. Even when the forces of this world and the lord of this world won great victories—and they did win great victories, though only for a little while—Scalia could always drive them to paroxysms of fury with a turn of phrase or a careful dissection of a non-argument. They might have won, but they undoubtedly didn’t like how hard they had to work to do so when Scalia was watching. And, as we say, it is far from clear that anyone can fill that role quite like he did.

And, in all the memorials and remembrances, we think it is especially important to remember that Scalia was a champion of civil liberties, especially liberties that are important for criminal defendants. Scalia did much to save the Confrontation Clause of the Sixth Amendment from the constitutional dustheap, and he routinely voted in favor of robust Fourth Amendment protections. For him, these provisions were not impediments to effective police work, but necessary guarantees that protect citizens from police overreach. And he formed a remarkably durable coalition with liberal justices to provide much needed majorities to protect these rights. (We suspect that, very soon, the people thrilled today that their old nemesis is gone will miss him.)

Of your charity, pray for the repose of his soul.