William Brennan stared at the happy, bounding figure in the Supreme Court building. “My lord, Bill, have you got a lot to answer for,” Antonin Scalia quipped. The most important liberal justice of the Supreme Court after the retirement of Earl Warren didn’t take it personally. He was touched by “Nino”‘s kindnesses, laughed at his wit. “I am sure that, even when disagreeing, we will be the best of friends,” he told Brennan, an exchange recorded in Stephen Wermiel and Seth Stern’s biography of Brennan.
This situation would repeat itself over the years. Fellow Reagan appointee Sandra Day O’Connor thought he was a delight until he ridiculed her opinion in Webster v. Reproductive Health; her opinion, he wrote, “cannot be taken seriously.” The friendship with Ruth Bader Ginsberg (they rode an elephant!). Teaching Elena Kagan to hunt. Meanwhile the Beltway class asks, and, as of 6:58 p.m. tonight continues to ask, detractors to appreciate him, for “love him or hate him, he was important, a brilliant mind, a wonderful writer.” The continued decadence of political reporting and the permanent DC government reveals itself whenever it believes — there’s no pretending, no cynicism — that legislation and court decisions are banal enough to shrug off; that legislation and court decisions don’t affect people in Kenosha, Cedar Rapids, Stockton, and Sanford; that I’m supposed to praise not bury Scalia when, had he had his way in 2003’s Lawrence v. Texas, I could still be arrested for sodomy in some states, misdemeanor or not. That case gave me plenty of reason to hate him. In his dissent it didn’t even occur to him to bestow nominal empathy to the plaintiffs; even Clarence Thomas, orthodox and more unyielding than Nino, said the Texas law that penalized sodomy was “uncommonly silly,” and were he a Texas legislator he would’ve voted to repeal it. The jesuitical streak in Antonin Scalia was a furrow. He believed in enemies, loved hating his foes’ apostasies — a quality that I often admire when their positions don’t affect my life.
With his shallow malice, command of precedent, political zealotry, and generational influence, Antonin Scalia is the most significant conservative intellect of the last forty years. Forget William F. Buckley, Ronald Reagan, whichever neoconservative you care to mention. Recall that the Senate was so exhausted with the William Rehnquist confirmation battle in 1986 that Scalia was confirmed 98-0. He said torture did not violate the Eighth Amendments cruel and unusual punishment clause. In his Arizona v. United States dissent, he waxed wistful on states’ abilities to keep out people it didn’t want, mostly slaves. When he remembered he was an “originalist” and a politician too he could be effective explaining why flag burning was a legitimate exercise of one’s free speech and, in Hamdi v. Rumsfeld, refused to allow suspects held indefinitely under the Chief Magistrate’s authority without Congress first suspending habeas corpus or trying the suspect in civilian court. This excerpt I find particularly stirring, so obvious in its soundness that it adduced his claims to constitutional literalism:
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis…Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.
In search and seizure cases he could side with those who protested, for example, thermal imaging (one of the first cases I was conscious of as a Court follower). Long before Bill Clinton set eyes on Monica Lewinsky he foresaw the damage wrought by an independent counsel; one of my favorite essays by Renata Adler, written at the height of the impeachment nonsense, rests on this dissent.
I suspect Scalia would have vomited at the idea of Beltway pundits conscripting public sympathy anyway. If I’d met him I would’ve pointed out that he wasn’t such a great writer. Legal writing is often so lifeless that slang and leaden sarcasm qualify as intimations of immortality. In the last ten years his terrible jokes and uninhibited vitriol substituted for jurisprudence. So deeply do his mourners revere the Constitution that the Senate majority leader announced it wouldn’t let Barack Obama nominate Scalia’s successor, with the full complicity of a political class and electorate that already knew no nominee would get confirmed in an election year. No sentimentality then for an eminence who used his considerable intellectual resources to be cold-eyed about what redress the powerless could get from their government.