His opinions spoke to the millions in their unifying and grand prose; his dissents scathed many of “the somersaults of statutory interpretation” he vowed to protect the Constitution from. Justice Antonin Scalia’s life was an act of devotion to not just the Untied States and its laws, but to the governing principles written in the Constitution over two hundred and twenty years ago. For Justice Scalia, to abandon the founding document of the United States would be a “threat to American democracy.”
As a fierce jurist, he brought a commanding voice and a lawyer’s skill to the bench from which he looked upon the nation as the one of the most prominent protectors of the Constitution. Not only did Justice Scalia fulfill his duties as an Associate Justice of the Supreme Court, he also set a precedent for what it meant to be a conservative jurist with his words that seemed to echo more as a warning for the United States than a condemnation of its laws. In a case that was brought before the Court in the wake of 9.11, a plaintiff, who had been captured in Afghanistan in 2001 with charges of fighting with the Taliban, was deemed an illegal enemy combatant and therefore would not be subject to Constitutional due process. The problem was that the plaintiff was a U.S. citizen. The Court ruled in a 8-1 decision that enemy combatants who are U.S. citizens must be granted due process and the ability to question the status of the illegal enemy combatant classification. In his dissent from the plurality decision, Justice Scalia wrote:
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis — that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.
Justice Scalia’s approach to conservatism – his ardent support for a textually based interpretation of the Constitution that remained consistent throughout the ages – was based less on a moral condemnation and more on a legal interpretation of the originality of the Constitution. Scalia’s approach to conservatism is a fading approach, one that has seemed to fade with his passing.
In an election year where no subject, no attack, no issue is above the fray of launching political assaults, many politicians and many individual citizens can look at Scalia’s record and his ideology as a way forward. To base one’s opinions on legal precedent that has been established and written would deem, to most, more credibility than basing one’s political orientation off of attitudes and feelings. But something greater was shown following the late Justice’s passing: the deep divide between the two opposing political forces within the United States of America. Within hours of the news breaking surrounding Justice Scalia’s passing, both GOP leaders of the House and the Senate demanded that President Obama not nominate anyone to the Supreme Court citing the next President should be the one to nominate, not the exiting President. This sentiment was echoed throughout the nation as Republicans in the running for the GOP nomination decried Obama’s promise to nominate a new Justice while Democrats supported President Obama’s efforts. Hours cannot seem to pass following the death of a Supreme Court Justice before mud is slung and politics demands attention once more.
Years before, the Supreme Court never failed in becoming a central topic of debate between Presidential candidates and members of Congress as rulings were handed down from the bench in support of same-sex marriage, the Affordable Care Act (Obamacare), and even striking down an Arizona anti-illegal immigration law. In each of these instances, a conservative outcry was unleashed from the local level all the way to the national level in Washington D.C.. But in each case, those outcries soon became rallying cries for the Republican Party as they vowed to not only repeal Obamacare, but also challenge the same-sex marriage ruling in response to the Court’s seemingly liberal tendencies. The original intention of the Supreme Court was to be the final decision on legal matters within the United States, but it has become far from merely legal following the landmark Roe v. Wade decision. It may be difficult for people to imagine how political and polarized a courtroom can be, but when one realizes that the best legal scholars in the nation are picked by the leaders in Washington to debate and decide over the fate of any law brought before them, politics becomes the art of the trade. The United States has never been without its warnings, and the first hand dangers, of political polarization and eventual exclusion of one entire group of people from the governing process (regardless of how long that exclusion may last). For a nation that has survived a civil war, numerous debt crises, and Constitutional crises all resulting from the polarization of government, one would think that that the U.S. would avoid this polarization at all costs. But in a nation where groups chastise those who do not adhere to their political beliefs and where further right and further left political camps are on the rise, this polarization is far from solved.
If the United States of America cannot solve the problem of political polarization, a seat on the highest court of the land will remain vacant for an unforeseen amount of time. What if a Democrat wins the Presidency? Will the, presumably, GOP-controlled Senate reject any and all nominations from her or him? How far must the United States drive itself into political chaos before the people, not the leaders, finally begin to pick a new generation of politicians whose goals are not set on power or party gain, but on the benefit of the nation as a whole. One person from whom the United States can learn would be the late Justice Scalia’s ideological opposite: Associate Justice Ruth Bader Ginsburg. Justice Ginsburg, a veteran to the legal system appointed by President Bill Clinton (at the insistence of Justice Scalia) represented the liberal side of the court in her words and in her actions (Justice Ginsburg was the first Supreme Court Justice to officiate a same-sex wedding). And yet, despite their differences on the bench, the two Justices were nearly inseparable. On recalling one of the first time’s Justice Ginsburg heard her counterpart speak, she said, “I disagreed with most of what he said, but I loved the way he said it,” If two of the most powerful Judges in the United States can look past their own ideological differences to become friends, then neighbors can look past yard signs, Congress can work with the President to pass a substance tax reform bill, and the United States can bring together a divide that is tearing it apart.
One final note. Recalling a time when the two received a great amount of backlash after their trip to India in which Scalia was seen sitting in front of Ginsburg onto of an elephant, Justice Ginsburg poked at her friend saying their placement was “a matter of weight distribution.”
Associate Justice Antonin Scalia was 79.
Tapp is a contributor for LGBT Thoughts and Editor for The Millennial Times.