The following editorial appears in the Washington Post:
Antonin Gregory Scalia held many titles in the remarkable life that ended on Saturday after 79 years. Maureen McCarthy Scalia called him her loving husband for 55 years. Five sons and four daughters called him father; more than two dozen of their children called him grandfather. This good family mourns him, as do the numerous friends who knew “Nino” – as a professor, an assistant attorney general and, for the past three decades, as a justice of the Supreme Court.
At the court, he earned another title, “Leader of the Opposition,” albeit informally, in a magazine headline. But it fit: Scalia was the intellectual avatar of a conservative movement that took issue not only with modern American jurisprudence but also, in a real sense, with modern America itself.
It was not simply the Supreme Court’s expansion of federal power and the declaration of new rights – to Miranda warnings, to some affirmative action and, in Roe v. Wade, to abortion – that energized Scalia during the 1960s and 1970s. It was the arrogance with which, in his view, the court departed from, or even ignored, constitutional and statutory text, contrary to democratic accountability and the rule of law. By dissecting the court’s methodological failings, Scalia believed, he could ultimately win the underlying substantive battles. He thus acquired another title – “originalist” – and used his considerable verbal gifts against liberal shibboleths in one tartly worded opinion after another.
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Scalia’s vision of a society that decides its big issues through democratic processes, as opposed to delegating them to nine unelected lawyers, as he liked to call the Supreme Court, is not unattractive. Its weakness, of course, is the tendency – manifest with sad frequency in U.S. history – of majorities to trample the rights of minorities. That was the tendency the Warren Court tried to correct in the 1950s and 1960s. Scalia was not blind to individual rights himself; he wrote seminal rulings expanding certain protections for criminal defendants, and he stood up for protesters’ right to burn the American flag.
Scalia helped promote state sovereignty as one of five Republican-appointed justices who made up a majority bloc on those issues under Chief Justice William H. Rehnquist. He wrote the court’s opinion in the 2008 case establishing an individual right to firearms possession, a 64-page tour de force that showed how the court’s arguments had shifted to Scalia’s originalist terrain; his historical interpretation of the Second Amendment’s drafting obliged dissenter Justice John Paul Stevens to respond with his own.
But on the issues that most animated him and the conservative activists who cheered him – abortion, affirmative action and gay rights – Scalia did not, over time, carry the day. Originalism, however cogent, could not sway more pragmatic justices, such as his fellow Republicans Sandra Day O’Connor and Anthony M. Kennedy, who understood, better than Scalia did, the risks of setting the court against contemporary culture. To the contrary, when his wit, soured perhaps by deep disappointment at Roe’s durability, morphed into sarcasm, or even insult, he alienated those colleagues – and many citizens, too.
At his best, though, Scalia embodied the wisdom of Proverbs 27:17: “Iron sharpens iron.” For decades, he wielded mental steel against liberalism, and this obliged progressives to acknowledge their excesses and toughen their arguments. The essential achievements of the pre-Scalia court survived – their legitimacy enhanced for having been so relentlessly and brilliantly tested by him.
The Washington Post