After Justice Scalia

The death of Justice Antonin Scalia on February 13 – unexpected and, for many reasons, tragic – draws a curtain on the life and public service of one of the most important Catholic figures in America over the past half-century.

Justice Scalia was regarded, by admirers and detractors alike, as the most consequential jurist of his time. He brought a remarkable intellect, a clear concept of judging, a distinguished literary style, and a biting wit to his work on the U.S. Supreme Court. His utter demolition of the majority opinion in Obergefell vs. Hodges, the decision that invented a constitutional right for people of the same sex to “marry,” is a masterpiece of devastation – as was Scalia’s dissent from Chief Justice John Roberts’ opinion saving Obamacare by reinventing it as a kind-of-tax.

But it would be a grave mistake to think of Justice Scalia’s jurisprudence as essentially negative. Rather, his judging was based on convictions about who should make the laws and how judges should function in a system of judicial review. In a democracy, he believed, legislators, chosen by the people, are free to craft laws within the bounds set by the Constitution. The judge’s task is to interpret both Constitution and statutes according to their text, and according to the text’s meaning as that meaning was understood when the text was adopted. Any other method of judging, he thought, inevitably turned the Supreme Court into a Super-Congress, in which nine unelected lawyers who were not subject to periodic elections ruled the country. That seemed to him a very bad idea. More to the point, it was not the idea of governance inscribed in the Constitution.

Justice Scalia was not only a distinguished jurist; he was a wonderful man, full of vitality and humor. He made no secret of his intense Catholicism, bred in him in his youth. (Nor did he hesitate to express his concerns when the Church seemed to him to be coming unmoored from the Great Tradition on which it was grounded.) He was a devoted husband and father, and his friendships extended far beyond the range of those who agreed with his jurisprudence. A man of honor and a dedicated public servant, he was, with Henry Hyde, one of the two most influential Catholics in national affairs during his years in Washington. He will be sorely missed, not only by those of us privileged to know him, but by anyone who cares about intelligence and integrity in public life.

There will be an enormous political struggle over filling his seat on the Court. It is far too early to know how that struggle will resolve itself. But it’s not too early to do Justice Scalia one last honor and ask the question, why is that struggle so crucial? Why has the Supreme Court become such a Leviathan in our national public life?

Something is wrong here. Last June, one man, Justice Anthony Kennedy, decided on behalf of 322 million Americans that the Constitution included a “right” for people of the same sex to “marry” each other. Put aside the fact that his reasoning was so specious (indeed vacuous) that the keener proponents of “same-sex marriage” were dismayed by it, and are trying to find another case that would put their “right” on firmer constitutional ground. Put aside the fact, previously noted, that after Justice Scalia’s dissent from Kennedy’s opinion, the dental records were needed to identify the remains.

The real question was, is, and ought to be this: Why was one man deciding this for the entire country? Why was a deeply controverted issue being removed from the deliberation of the people and their legislators and decided by unelected and unaccountable judges? (Yes, I know, Supreme Court justices can be impeached; but if you believe that a remedy for Obergefell – or in just about any other imaginable instance – I have a nice bridge in Brooklyn to sell you.)

America would honor the memory of the great Antonin Scalia if the 2016 presidential campaign, which will now, inevitably and bitterly, engage the question of his successor, would seriously debate the prior questions: Why have these Supreme Court nominations become so important, and what can be done to restore balance to the American constitutional order?