“He was a man. Take him for all in all. [We] shall not look upon his like again.” Those words from Hamlet seem appropriate on the death of US Supreme Court Justice Antonin Scalia. He had a powerful effect on the Court and on the law more broadly. Scalia was the most eloquent and prominent proponent of the idea that the Constitution should be interpreted according to the “original meaning” of its words: the meaning they had at the time of their adoption. He argued, in his inimitable style, for a “dead Constitution”—whose meaning is fixed until changed by formal amendment—over a “living Constitution” that a judge can manipulate into whatever shape he wishes.
Moreover, except for Ruth Ginsburg, it is hard to imagine another justice becoming so visible in the broader culture. Many who hated Scalia’s rulings could not help but be entertained by his razor-sharp writing, which he used especially in his dissenting opinions to carve up the majority’s reasoning (my favorite is Planned Parenthood v. Casey, where among other things he referred to the majority’s “Nietzschean vision of us unelected, life-tenured judges—leading a Volk who will be ‘tested by following’” the Court’s rulings obediently). In a talk at my law school last November, he said that he wrote his dissents “mainly for you guys, for law students.” His eloquence inspired generations of lawyers and students convinced by his judicial philosophy.
It’s worth taking time to consider another aspect of Justice Scalia: his religious faith. He was a devout Christian, a traditional Catholic, who set forth his Christian beliefs as he did his views on virtually every other subject: with honesty, wit, and pungency. At a 1996 prayer breakfast, he exhorted attendees to wear the label “fools for Christ” in the face of scorn from the “worldly wise.” In a 2013 interview, he made clear that the Devil “is a real person” whose presence is less explicit today than in biblical stories only because “he’s gotten wilier.”
But this most publicly devout justice also made especially clear that his beliefs had nothing to do with his judicial role. Scalia denied that there was any such thing as a Catholic, or a Christian, judge. His job, he emphasized, was merely to ascertain the meaning of the legal text at of the time of enactment, using contemporaneous dictionaries and other evidence, and apply it without regard to policy considerations or moral values, including religious values. “I’m a worldly judge,” he said in a 1996 speech at a Catholic university in Rome. “I just do what the Constitution tells me to do.” The only one of the Ten Commandments relevant to the judge’s role, he said, was the command to tell the truth.
Even as he dissented vigorously from the constitutional right to abortion, he emphasized that he did not do so because he (or the Church) viewed abortion as immoral. It was simply that “[i]f the people . . . want abortion, the state should permit in a democracy. If the people do not want abortion, the state should be able to prohibit it as well.” Indeed, he was quoted as saying in an interview, “If I genuinely thought the Constitution guaranteed a woman’s right to abortion, I would be on the other [side].”
Scalia did not say whether, in that hypothetical situation of personal moral conflict—the Constitution requiring him to block a legislative effort to protect human life—he would stay on the bench and enforce the constitutional rule, or resign. (A similar conflict actually arose in the pre-Civil War years for anti-slavery judges, who were required by the Constitution to order fugitive slaves back to their masters.) But Scalia did say that if he agreed with the Catholic Church’s recent condemnations of capital punishment, he might have to resign, at least if he were a trial-court judge who actually had to impose a death sentence. (He never faced that conflict either, because he disagreed with the Church and thought the death penalty morally permissible.)