Much can, and undoubtedly will, be said about the legacy of Justice Antonin Scalia.
He is being called a “giant” of the Supreme Court. His dogmatic insistence on so-called originalism as the one true way to interpret the Constitution has shaped much discussion of the Constitution. He proudly proclaimed that, unlike proponents of a “living Constitution,” he viewed the Constitution as “dead” and basically mummified in the late 18th century.
A paradoxical aspect of his legacy, though, is that he seemed to care relatively little about actually persuading his colleagues on the high court, or, just as importantly, entering into necessary compromises designed to elicit their agreement.
He fundamentally rewrote the job description of “Supreme Court Justice” by directing a great deal of his attention outside the court. He engaged in indefatigable public campaigning to build support for his view of the law.
He recognized the important role that social movements play in what might be called “constitutional politics.” For example, Scalia and his Supreme Court adversary, Justice Stephen Breyer, met in a public debate at Texas Tech University before some 5,000 people in 2010.
Supreme Court justices like to think in terms of precedent, and that joint appearance and vigorous debate before a mass audience about constitutional fundamentals was truly unprecedented.
One of Scalia’s most important techniques in building popular support was the willingness to use his considerable rhetorical skills not only to offer vivid descriptions of his own positions, but also to denigrate those of his opponents.
In fact, in many ways Scalia adopted the role of the predominant “trash talker” on the Supreme Court. Many of his opinions are altogether similar to the slash-and-burn rhetoric that we associate during this campaign season with Donald Trump.
Scalia commented, altogether accurately, that he and his colleagues “are not in agreement on the basic question of what we think we’re doing when we interpret the Constitution.” When I teach constitutional law, as I have for almost 40 years, I try to emphasize that reasonable people can disagree. Men and women of undoubted good faith can come up with strikingly different answers to constitutional conundrums, and we have to learn to live with this sometimes discomforting reality.
That was not Scalia’s way, however. He really didn’t believe that reasonable people could disagree about constitutional meaning. There was only one proper approach, the ostensible fidelity to the purported original understanding of the Constitution; rejection of that approach was the equivalent of heresy.
This use of vituperation was on full display in what will now count as his last major dissent, in the Obergefell case that gave constitutional protection to same-sex marriage. One need not necessarily believe that the court made the correct decision (although I do). One might still bewail the language of sarcasm and insult that ran through his angry dissent. Consider his reference to the majority opinion as a “Putsch.”
For any well-educated adult, the one-and-only example of a “Putsch” is Adolf Hitler’s “Beer Hall Putsch” of 1923, an important episode in the rise of Nazism. And Scalia immediately went on to say that his colleagues had failed their most elemental task, which was to “function as judges.”
This is vivid — and highly quotable — language, as is the case with much of what Donald Trump says.
Like Trump, Scalia treated those who disagreed with him as fools or scoundrels. Law professors who adopted Scalia’s approach of vituperation and insult directed toward those judges whose decisions they disagree with would properly be subject to chastisement.
Our task, with very few exceptions, is to note how men and women of good faith can in fact arrive at strikingly different conclusions. To be sure, we must choose our own favorites — and explain why we agree with them — but that does not require simple dismissal of those on the other side as stupid or venal.
Scalia, as befits someone with more than three decades of service on the high court, leaves multiple legacies. But the coarsening of our public dialogue with regard to constitutional debate stands out. Whatever the proper venue for trash talk might be, its entrance into the opinions of the Supreme Court is something we should all regret.
Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the School of Law at The University of Texas at Austin.
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