by Joseph P. Tartaro | Executive Editor
Associate Justice of the Supreme Court Antonin Scalia’s sudden death on Feb. 13 of reported natural causes at age 79 at a West Texas hunting ranch shocked the news media and the political class in the middle of a critical presidential and congressional election year.
Gunowners and hunters have lost a great jurist and fellow hunter. All Americans have lost a friend, even as some of his most virulent left wing critics have expressed shameful sentiments at his passing. Among his closest personal friends, on or off the court, was the liberal woman jurist Ruth Bader-Ginsburg. Scalia and Bader-Ginsburg were close enough that they were equally at home taking tea together or on joint target shooting expeditions.
Whether most of his critics realize it or not, those who wanted Scalia to cater to their wildest policy fancies were often served better by his intellect than they would ever imagine. In many cases, such as gay marriage and abortion on demand, he just didn’t believe it was the federal government’s job to decide what the states could or could not legislate for themselves. On further reflection, they will come to realize that this “originalist” thinker was not really a partisan for any cause so much as a genuine arbiter of what the Founding Fathers dreamed for their new republic.
The nation has lost a great jurist who had a major influence on the court both in rulings and dissents. He is credited by many on both sides of the great gun rights debate as the architect as well as author of the landmark 2008 Heller decision which ruled that the Second Amendment guarantees an individual right to arms for personal defense, and a major influence on the 2010 McDonald ruling in a case brought by a former Black sharecropper’s son.
But Heller was not Scalia’s only controversial opinion. During 30 years on the Supreme Court, he participated in or dissented from many high profile and nation-influencing rulings.
Although seldom in full agreement with the current White House, he was praised by President Obama as “one of the towering legal figures of our time” and as a jurist “who dedicated his life to the cornerstone of our democracy: the rule of law.”
However, the president also made it clear that he would nominate a candidate to replace Scalia on the high court “in due time.”
And the prospect of that nomination has set off one of many battles that are sure to follow the conservative Scalia’s passing. While the constitutional authority to name candidates for the court resides with the president in office—with confirmation required by a majority of the Senate—seldom does such a vacancy occur in the midst of a presidential election year. The court can still function with a vacancy.
This has inspired Republican candidates to urge Obama not to nominate a candidate during his last few months in office in favor of leaving Scalia’s court seat vacant for whoever wins this year’s election. Democrats, however, are urging the current president to move quickly, preferably to nominate a liberal judge, which would strengthen the current liberal faction on a court that is already considered at least evenly split philosophically, often ending in 5-4 decisions decided by one swing vote.
The permutations of what can or might happen would make political thriller novelists drool. All kinds of conspiracy plots could be developed over how Scalia’s seat could be filled, with countless schemes by extremists on both sides of the debate.
Scalia himself might be amused.
He was born March 11, 1936 in Trenton, NJ, to an immigrant Italian who became a college professor, and a mother who was a teacher. Antonin Scalia was educated at Harvard Law School and Georgetown University. “Nino,” as he was called by friends, grew up in a multi-ethnic neighborhood of the Queens Borough in New York City. His intellectual capacity was demonstrated at Georgetown University, where he graduated valedictorian and summa cum laude with a bachelor’s degree in history in 1957. After graduation, he went on to study at Harvard Law School. During his final year at Harvard, he met his wife of 48 years, Maureen McCarthy, an undergraduate at Radcliffe College. The marriage flourished with nine children and 28 grandchildren.
He began his legal career in Cleveland, Ohio in 1961, then he took a professor position at the University of Virginia Law School in 1967. He entered public service in 1972 when President Nixon appointed him general counsel for the Office of Telecommunications Policy. After another teaching stint at the University of Chicago Law School, Scalia was appointed to the Court of Appeals for the District of Columbia in 1982 by President Reagan. There he built a conservative record and won high praise in legal circles for his powerful and witty writing, often critical of the Supreme Court. This led to his nomination to the high court by Reagan in 1986 and Scalia was confirmed unanimously by the Senate.
As a Supreme Court Justice, Scalia was considered to be one of the more prominent legal thinkers of his generation. It was also through his blunt (some would say scathing) dissents that he earned a reputation as combative and insulting. And yet to many who knew him personally, he was unpretentious, charming, and funny.
Justice Scalia adhered to the judicial philosophy of originalism which holds that the Constitution should be interpreted in terms of what it meant to those who ratified it over two centuries ago. This was in direct conflict with the more commonly held view that the Constitution is a “living document,” allowing courts to take into account the views of contemporary society. In Justice Scalia’s view the Constitution was not supposed to facilitate change, but to impede change to citizens’ basic fundamental rights and responsibilities. Justice Scalia abhorred “judicial activism” and believed the place for implementing change was in the legislature, where the will of the people are represented.
Antonin Scalia’s performance on the bench exemplified judicial restraint, sometimes puzzling both conservatives and liberals alike.
Maybe his family understood him better than any observers in politics or the legal profession. We send them our sincerest sympathy on their lost—and ours.
