Justice Scalia’s passing is a monumental event, and many important voices have remarked upon his legacy as a jurist, his exemplary friendship with judicial foe Justice Ginsburg, and the fate of close, controversial cases given Justice Scalia’s vacancy on the Supreme Court. Partisans have also inserted their opinions about whether President Obama should fill Justice Scalia’s seat before the President’s term ends. In my shock and sadness over Justice Scalia’s death, I have really enjoyed reading the myriad views on Justice Scalia – the essays that are scathing, the pieces that are laudatory, and the articles that offer a complicated depiction of the Justice. I write now to share how my (one-sided) relationship with Justice Scalia has both tracked and transformed the lawyer and teacher I am today. This is personal.
When I began law school, my political views were in flux. I had been almost a socialist in college but was moving in a more libertarian direction. I was straight out of college and enthralled by law school. I loved the law. I loved its ability to create coherence out of chaos, its sense of principle over bias (reason over result), its muti-faceted, interdisciplinary nature. Law was the sum total of all of human achievement, marshaled to create a fairer, more just society, ruled by beautiful, abstract principles. I loved the law for the same reason I loved the First Amendment: no one person has a monopoly on truth and justice, so we should follow principles that treat everyone similarly. Given these views, I adored Justice Scalia. I wasn’t a conservative, but I truly admired what I saw as his results-neutral judicial philosophy. His idea, that we should interpret the Constitution based on the original public meaning of the Constitutional text at the time a provision was drafted, gave me a reason to believe in the Constitution as something more than just a tool for individual Justices to enact their policy preferences. I gravitated towards two-step originalism, where originalist principles could be updated to serve a modern era. I dressed as a version of Super Justice Scalia for Halloween, with an S over a judicial robe. Many of my quite liberal friends at Stanford disliked Justice Scalia. I worshipped his wit, his incisive reasoning, and what I saw as his sense of principle over result. To me, any other judicial philosophy was reverse engineering from result to reasoning, and that was contrary to the rule of law.
As law school progressed, I became somewhat disenchanted with Justice Scalia. Because I had read many of the cases his opinions cited, I knew when he was using cases disingenuously. I couldn’t reconcile how Justice Scalia had signed onto Bush v. Gore years earlier. I began to wonder if it is better to articulate a principled philosophy of jurisprudence and then sometimes hypocritically favor result over reasoning, or whether it is better to simply never articulate a clear principle of jurisprudence at all. Justice Scalia’s dissent in Lawrence v. Texas seemed angrily clouded by his anti-LGBT bias in a way that was ugly, wrong, and unbecoming of a Justice. Many of my LGBT friends feel dehumanized by his Lawrence and Obergefell dissents. I appreciate that sentiment, although I also think what Justice Scalia wrote in Obergefell was an important chastening of a poorly reasoned, fairly incoherent majority opinion. (I agree with the result in Obergefell, but I think gay-marriage bans should have been overturned on Equal Protection grounds, not a hodgepodge of substantive due process rights and a vague invocation of dignity interests.) This is something special.
Over the years, my judicial philosophy (although perhaps not my politics) became more liberal. Conservative judges as much as liberal judges seemed to be rendering political opinions. Judges couldn’t avoid allowing their own views or pet issues to creep into their analysis, especially when legal tests turned upon what was “reasonable.” And originalism didn’t point to clear answers in many cases, although it certainly gave guidance and set the boundaries on a range of outcomes in any given case. I still loved the beauty and elegance of the law, but I slowly began to see that judicial philosophy didn’t need to or couldn’t involve one, unifying principle to be coherent – even if articulating a clear judicial philosophy was a check on a judge’s power to usurp legal reasoning with his or her own views.
A decade has passed since I attended law school. Through my evolving views on constitutional interpretation, I have always appreciated Justice Scalia for proffering a vital theory of constitutional interpretation. I believe he is principled, coherent, and results neutral more than any other sitting Justice. He gives me faith in a Court that can transcend politics. I know that’s not always possible in every case, and I now believe that some cases really should turn on result (perhaps one such case is Obergefell; we just cannot live in a society that bans gay marriage). I am extremely saddened by the loss of Justice Scalia, and I am not sure a majority liberal Court will protect our constitutional rights and the rule of law better than a majority conservative Court. The challenge for any judge is figuring out when the democracy must trump our insistence on an important right, and when the Constitution is actually preserving a liberty against current public opinion. If you err too much on the side of creating rights, you undermine democratic legitimacy. If you err too much on the side of deferring to the legislative or executive branches, you undermine the purpose of the Constitution. Justice Scalia attempted a solution to this problem. It was an imperfect solution, but it made me believe that we can work towards a solution.
What overwhelms me so much about Justice Scalia’s death is that he seemed like such an immortal figure. He was larger than life and smarter than everyone. He was a flawed man, and often an angry man (sometimes his frustration with the judiciary was appropriate), but I wish he were still around.