Our Hero has died, at the age of 79.
If you seek a monument, look around: Justice Scalia was one of the most important American judges since Holmes—perhaps even since Marshall. He leaves behind him a monumental legacy. To paraphrase Justice Souter’s moving eulogy for the late Justice Brennan, what no one is doing today is saying goodbye to Justice Scalia; “the law as he saw it will transcend his own time,” and any time we will heretofore consider a legal question on almost any subject of any importance, our starting place will be a statement by Justice Scalia. For centuries to come, “we will either accept the inheritance of his thinking, or we will have to face him squarely and make good on our challenge to him. And so there are no goodbyes to be said now to [the justice, for] … we shall deal with him many times again.” But our friend is gone. Our mentor and hero is gone.
In coming weeks, perceptive encomia to his career, jurisprudence, and profound impact on the law will be written. This post will be brief and personal.
Over the last decade, I have often used “Our Hero” as a sobriquet for Justice Scalia; that it’s tongue-in-cheek doesn’t mean that it’s a joke. I find myself thinking about one of the late Alan Rickman’s less-celebrated roles, Galaxy’s Quest‘s Alexander Dane. In the movie, broadcasts of an eponymous Star Trek knock-off have been received by an alien civilization that has mistaken them for Earth’s “historical documents.” Rickman’s Dane is an actor infuriated with the trappings of playing “Doctor Lazarus,” the show’s Spock character. But the aliens took the show seriously, and one of them, Quellek, has taken Lazarus very seriously, seeing something of great value in his philosophy, and seeking to pattern his life and studies on him.
I never met Justice Scalia, but ten years ago last month, his debate with Justice Breyer at American University changed my life. He gave me direction, focus, and an intellectual toolkit that has shaped my approach to every question where we confront a text. He carried forward and refined the legal process mindset—actually took the class from Sacks, if memory serves—with its emphases on neutral principles, institutional competence, positivism, and a “soft realism” about what judges do that protected Scalia and his devotees from the temptations of so-called “strict construction,” which he routinely dismissed derisively. To this, he added his distinctive contributions: An insistence on textualism and “Original semantic meaning” Originalism. Ralph Rossum summed up his approach as “text and tradition”: Law comprises textual rules that are promulgated by the duly-authorized instruments for issuing those rules, the text controls, it means what it meant when adopted, and we do not lightly presume that longstanding tradition has actually been at odds with text all along without anyone noticing. We should not assume that our predecessors were stupid, and we should carry the flame forward, keep doing what we’ve always done. And, unsurprisingly for a man so focused on text, he was a himself a luminous writer; as was said of Holmes, even when he was clearly wrong—think of Brown v. Entertainment Merchants Association—he was wrong clearly.
What I learned from Justice Scalia is a mindset and a methodology that Judge Easterbrook has called “legalism.” Easterbrook is surely correct if he means to insinuate that the alternatives to the “legalist” approach are lawless; there is no alternative approach to legalism that is consistent with the rule of law. It begins with an assumption that when we approach legal problems, there is an objective “correct answer,” that has little or nothing to do with our subjective preferences. We ask questions such as, “what is the controlling principle? Where is that principle to be found, what is its derivation? Is this a principle that we will apply neutrally to other cases?” As has been said, we assume that where text controls, the original meaning of the text controls: The semantic content of the text as it would have been understood in the time and culture in which it was written sets the boundaries of our interpretation. We comprehend a hierarchy of authority in which there is the controlling material itself, but augmented by authoritative exposition and valuable commentary by people whose work may have great persuasive value that may in some cases compel deference. (We believe that there is peculiar authority and value to the early expositors of the text: The Federalist Papers, for example, but also the Commentaries of Justice Story and Chancellor Kent.) We reject the idea that we have the authority to change that which has been given, or that we should bend it to suit our own preferences—we reject that not because we think it ill-advised but because we think it illegitimate given the nature of the enterprise. We tackle problems using the approach and conventions of the Anglo-American legal tradition: We deal with things in writing, sewing together a patchwork quilt in which we seek to contribute only the thread of ourselves (in St. Francis de Sales’ felicitous analogy), we parse very carefully the authority and precise scope and holding of the materials before us, we ask questions and use hypotheticals to illustrate or probe the reach of principles. We think in terms of “If this is the right way to interpret the word x in section 3, it must have the same meaning in sections 4 and 5, and because it cannot have that meaning in sections 4 and 5, it presumptively cannot bear that meaning in section 3.” We think in terms of evidence: How do we know this? What is its source? We minutely account for the sources whence we drew that patchwork quilt’s components. I could go on, but the point is that this is a system for thinking about thinking—what kind of questions are controlling and how do we answer them.
And these are lessons that apply far beyond the realm of law. Certainly they have political implications. (I was already well on the path toward conservatism by 2005—blame Newt Gingrich—but I became much more traditionalist because of the gravitational pull of Scalia’s thinking.) But religious, too: When I started to take religion seriously, it was natural that I approached it through the lens of text and tradition. Like the law, Christianity is a tradition full of many and variegated texts, and Justice Scalia had already taught me what you do with texts in a tradition. It should have been no surprise to anyone that, for example, I approached the “Luther Court”‘s sudden third-quarter left-turn with deep skepticism, or that I found the writings of the Church Fathers—in which we find the Catholic Church, in ovo but recognizable—of great importance, comparable in weight to Story and Kent. I didn’t know what the answers were when I went looking, but, thanks to Scalia, I knew what an answer is, and how one goes about finding it—what are the criteria? Would I be a Catholic today but for his influence? Perhaps; but if so, like a man who stumbles upon the right answer for the wrong reason (or no particular reason), it would been by blind luck, and would be a fragile, chancy thing.
(Intriguing, too, is that other devotees of Scalia who have subsequently become religious have likewise become Catholics. It’s certainly true that having a man like Scalia as an example to whom one can look and say “well, if someone as serious as Scalia can be a Catholic, maybe I should give it a serious look.” But it may be more than that. I think that George Kannar may very well have had it backwards: It wasn’t that Scalia’s meta-level religious assumptions biased his meta-level approach to law, it may well be that the precepts and analytical paths of legalism biases a person toward Catholicism.)
Thankyou, Sir, for your service. I would not be the man I am today without you, and if the world you leave is not better than the one you found, I dare say that it would be much worse but for your efforts.