Justice Scalia—Bringing the Dead Constitution Alive

Justice Scalia at IIT Chicago-Kent, October 2011

Whether or not one admires the judicial conservatism that Justice Scalia advocated so fervently during his almost three decades on the Supreme Court, the Justice’s legacy also includes a contribution that Americans across the ideological spectrum should appreciate: a dedication to sharing his vision of the Court and the Constitution with the American people.

A good deal of attention to Scalia’s legacy has focused on his provocative written opinions, particularly his famously scathing dissents. But we should also remember his off-the-bench speeches and writing, which I believe will go down in history as just as much a part of his legacy. Whether on the bench or off, Justice Scalia sought to reach an audience beyond the ranks of appellate lawyers and legal scholars who are paid to pay attention to what the justices say. He expressed his views on the law with a passion and style rare for a member of the High Court. He took obvious pleasure in making statements that one could not help repeating, whether in admiration or disgust (or, as often was the case, some of both). He could be quite funny. He wanted to inspire, to provoke, to anger.

When Justice Scalia took to the lectern to deliver one of his countless speeches to groups of students or lawyers, or when he sat for an interview, he came across as remarkably confident and uninhibited. This was not the way justices were supposed to act. Margaret Talbot once wrote in the New Yorker that in these settings Scalia had the ability to produce “the jurisprudential equivalent of smashing a guitar onstage.” He was a showman. “He will be funnier, more sarcastic, and more explicit about his beliefs than most people expect a Supreme Court Justice to be,” she wrote.

What made Justice Scalia so riveting in these public settings was not just his skills as a performer, though. It was that he would speak with such seeming candor about things that perhaps he should not. In recent years, he questioned whether gender discrimination should be accorded heightened scrutiny in equal protection analysis. He categorized contentious constitutional issues such as the death penalty, abortion, and gay rights as “easy” cases to resolve, based on his interpretive beliefs. He dismissed attempts to prohibit laws based solely on moral condemnation by analogizing the constitutional basis for prohibitions on murder and prohibitions on gay sexual relations. He seemed to take pleasure in walking right up to the line of propriety for what a Justice can say. Critics said he lost track of where that line was.

Justice Scalia was also a master of making jurisprudence a kind of personal drama. He told audiences that he did not like “bearded, sandal-wearing weirdoes” who burned the American flag. But he would defend their constitutional right to do so, because legal principle must trump policy preferences. “If you play the old way,” he said, “you often have to reach decisions you don’t enjoy.” Then he would tell a story to bring home the point: The day after the Court struck down a law prohibiting flag burning, he sat down for breakfast. On the table was a copy of the newspaper, with front page coverage of the Court’s ruling. His wife was fixing breakfast and humming “Stars and Stripes Forever.” “I don’t need that,” he told his audience in a sure laugh line. Then came the moral of the story: “The living Constitutional judge never has to put up with that. Whatever he thinks is good, is in the Constitution.” Justice Scalia turned his breakfast into a lesson on constitutional theory and judicial integrity. Agree or disagree with the point of his lesson (and there is plenty to take issue with here), the guy could work an audience.

Scalia’s off-the-bench remarks stirred critics to condemn not only the content of his remarks but the propriety of a Justice speaking so bluntly and provocatively. At times he surely said things he should not have, increasingly so in recent years. But I think it is important to keep in mind what Scalia was doing at these moments. He engaged diverse audiences on a substantive yet accessible level about his deeply held beliefs about the Constitution and the role of the judge. One need not abandon a commitment to an essential distinction between judges and politicians to recognize the benefits, both for the Court and for the nation at large, of Justices taking more time to talk to the American people about their work, particularly when they do so in a manner that is direct, accessible, engaging, and, yes, deliberately provocative and controversial. The Justices are uniquely situated to contribute to public understanding of the role of judges in a constitutional democracy. Instead of chastising Justices for sparking public debate, we should applaud them—and expect more.

For a man who liked to declare that the Constitution was “dead,” Justice Scalia, more than any justice in recent memory, perhaps any justice in the history of the Court, brought to life for the American people the struggle to give meaning to the Constitution.

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