Professors reflect on the late justice’s jurisprudence and legacy
Supreme Court Justice Antonin Scalia died in his sleep on February 13 at Cibolo Creek Ranch in Shafter, Texas, at age 79. Appointed by Ronald Reagan in 1986, Scalia served on the Supreme Court for nearly three decades.
Scalia’s son Paul, a Catholic priest, delivered the homily at the funeral Mass held on February 20 at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C.
“We are gathered here because of one man,” said Reverend Scalia. “A man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion. That man, of course, is Jesus of Nazareth,” he continued.
This statement, which likely caught listeners by surprise, seems to encapsulate Scalia’s life, one in which faith, family, and country played prominent roles.
Anthony J. Bellia Jr., O’Toole Professor of Constitutional Law at Notre Dame’s law school, clerked for Scalia during the 1997-98 Term of Court.
“Justice Scalia was an exceptional jurist who, by force of reason and principle, transformed debates over constitutional law and the role of courts in our federal system,” Bellia told the Rover. “He was one of the most influential justices of our day, and he likely will go down as one of the most influential justices in United States history.”
Scalia is remembered for his principles of originalism and textualism. Gerard Bradley, Professor of Law, discussed Justice Scalia’s approach to constitutional interpretation with the Rover.
“Scalia stands at the top of the conservative legal movement, which really congealed into a self-conscious form in the early- to mid-1980s, and is carried most effectively today by the Federalist Society, of which Scalia was a warm friend, and by a dedication to text and history in constitutional adjudication that was most often called ‘originalism,’” he said.
“Scalia is the great originalist,” Bradley continued. “Bob Bork and former Attorney General Ed Meese and Justice Thomas are other prominent exponents of originalism.”
Rick Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law, explained the late justice’s approach to interpreting laws. “Justice Scalia believed that laws are texts and that legal interpretation involves interpreting those texts,” he told the Rover. “The meaning of a legal text, he believed, is determined by the plain and public meaning of the words it contains. It is not appropriate, he believed, for judges to try to make our laws better by drawing on their understandings of morality or first principles.
“Those who draft and enact our laws [are responsible] for making those laws just; judges’ responsibility is to apply those laws in accord with the meaning that others have determined,” Garnett concluded.
Bellia remarked on how the late justice’s interpretive principles shaped his approach to his work. “One of the most valuable lessons that I learned from him is that public service requires elevating the common good over self-interest and personal preference. Justice Scalia believed that there is a difference between law and politics,” he explained. “Specifically, he believed that judges should decide cases in accordance with the original meaning of the Constitution and the text of federal laws rather than in accord with their own political preferences—and he did his best, case by case, to fulfill that duty.”
According to Bellia, anyone who worked with Scalia learned that it was both worthwhile and possible to serve the common good over his own self-interest.
Santiago Legarre, Visiting Professor of Law from Universidad Católica Argentina, critiqued the late justice’s approach to constitutional interpretation.
“As much as I respected Justice Scalia’s dedicated commitment to the Supreme Court, as much as I liked his freshness and genuineness, I regret his unwillingness to engage in a moral interpretation of the Constitution,” he told the Rover. “He would famously treat matters of constitutional meaning as mere historical investigations, without seeming to realize that, like any other law, the Constitution is there to serve a people here and now—not [only] the ‘original’ people.’”
Legarre continued, “This reluctance to read the text in the light of justice is especially patent (and regrettable) in the abortion cases—most notably in Planned Parenthood v. Casey—where his ‘leave it to the States’ approach made little of the powerful protection afforded by the federal Constitution to persons, a concept, the one of ‘persons,’ that in justice ought to include unborn children.”
However, Legarre did note that he admired Scalia’s acerbic wit: “I had to read his opinions with a dictionary at hand, as a result of which I always learned a good deal other than law.”
For example, in Scalia’s dissent from the Obergefell v. Hodges decision, extending a constitutional right to marriage to same-sex couples, he penned in a footnote, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Bellia said clerking for Scalia was a privilege. “[He] was beloved by those who knew him—for his warmth, his friendship, and his example. … His sharp intellect, quick wit, and commitment to principle were unfailing. More importantly, his witness to the things in life that matter most—including faith and family—was constant.”
According to Bellia, the justice would debate cases with his clerks, sometimes for hours, in order to reach the best answer. “I remember one particular discussion during which Justice Scalia changed his mind about a difficult case after realizing that his original views did not reflect the best answer. He truly believed in the difference between law and politics, and he did his level best to maintain it,” Bellia said.
On this note, Garnett noted that many believed Scalia to be motivated by his own political and religious conservatism. “I think this is inaccurate,” Garnett said. “No one is perfectly consistent, but Justice Scalia was reasonably consistent in his opinions and other writings in insisting that his approach to legal texts is the one that is more humble and respectful of democracy.”
Garnett acknowledged that a humble jurist might sometimes be required to invalidate a certain law or policy. “But, in [Scalia’s] view, it is not appropriate for judges and courts to be creative in inventing or expanding new rights or limits on government,” Garnett concluded.
Since news broke of Scalia’s sudden passing, speculations have abounded about the upcoming nomination process. The loss of Scalia means a 4-4 split between the court’s liberal and conservative justices. With a Democratic president and Republican legislature, the nomination process to replace the justice is bound to be contentious.
“I expect that the Republicans in the Senate will hold hearings before the election on whomever the President nominates,” said Bradley. “I also expect that the Senate will vote down whomever the President nominates. I expect that both of these decisions will be the right ones.”
“What the loss of Justice Scalia will mean for the Court’s jurisprudence depends almost entirely on who nominates his successor,” Garnett explained. “If Justice Scalia is replaced by a justice whose approach resembles that of Justices Sotomayor, Breyer, Ginsburg, or Kagan, then there is a potential for dramatic change in some contested and controversial areas. If, however, his successor’s approach is more like, say, Justice Roberts’s or Justice Alito’s, then things could remain fairly stable for a time—that is, until the next vacancy!”
At the funeral, remarking upon his late father’s dislike of eulogies, Rev. Scalia chose instead to thank God for his blessings. “We are here then, as [my father] would want, to pray for God’s inexplicable mercy to a sinner. To this sinner, Antonin Scalia. Let us not show him a false love and allow our admiration to deprive him of our prayers.”
He continued, “We continue to show affection for him and do good for him by praying for him: That all stain of sin be washed away, that all wounds be healed, that he be purified of all that is not Christ. That he rest in peace.”
Stephanie Reuter is sophomore studying PLS and theology. She was fortunate enough to hear the late justice speak on religious liberty in January of this year. If you want to hear a humorous and insightful story he shared involving high school boys, a “crusty” Jesuit teacher, Shakespeare, and the law, contact her at firstname.lastname@example.org.