There is supposed to be no such thing as an irreplaceable man in a constitutional republic, where the rule of law and the God-given rights of the people are supposed to persist through the passing of the generations, but the death of Supreme Court Justice Antonin Scalia on Saturday at the too-young age of 79 will sorely test that dubious proposition.
One of the greatest jurists in American history, Scalia’s long career was devoted to defending the rule of law and the God-given rights of the people by insisting on the plain language and clear meaning of the Constitution. He did so when the Constitution favored liberal interests, he did so when the law and the Constitution favored conservative interests, and he most notably did it even went it against the prevailing tides of fickle public opinion that the Constitution was always intended to thwart. More importantly, he did it with a rare steadfastness and even rarer brilliance that in crucial moments that enabled his originalist theory of the Constitution to prevail over the idea that a mere five black-robed justices should be able to impose their beliefs on the other 300 million or so of the country no matter what the framers wrote or the states ratified or the people have long understood was the binding agreement.
Scalia was not only a decisive vote but also the the author of the very persuasive decision in Heller v. District of Columbia, which found that the Second Amendment’s guarantee of a right to keep and bear arms does indeed mean just that, even for the average schmuck who might need to defend his home and not just for a “well-regulated militia” that the left would happily regulate out of existence. He was a key voice in that Citizens United decision that all the Democrats and even some of the dimmer Republicans are still noisily insisting be overturned, and he wrote the far more persuasive concurring opinion, and all those soft-headed Bernie Sanders fans who share his indignation about it should know that its plain-meaning reading of the First Amendment basically said the government doesn’t have the right to exercise prior restraint of speech critical of Hillary Clinton or any other candidate of either party or any ideological persuasion, and that none of us would have a meaningful First Amendment without it. On every other occasion he was a reliable vote for whatever law had been passed by the people’s legislature and signed and by their duly-elected president which was not clearly in violation of the basic individual rights defined by the plain language of the Constitution, even if it was some dumb-ass law he and another four wised-up and black-robed jurists would have never voted for.
Even on those all-too-often occasion’s when Scalia insistence on the rule of law and the God-given rights of the people did not prevail, he wrote such brilliantly dissenting opinions that he will no doubt be quoted in some inevitable upcoming challenge, so he might yet prevail posthumously. His dissent in the Obergfel v. Hodges decision that legalized same-sex marriage will no doubt be cited in the countless forthcoming sentences against any bakers and photographers and churches who don’t want to participate in a same-sex wedding ceremony, so there’s hope that Scalia’s legacy will persist. There were enough times when Scalia thwarted George W. Bush and there’s some residual bipartisan spirits that obliges the likes of President Barack Obama and House Minority Leader Nancy Pelosi to pay him some lip service, and the press is being strangely respectful, and Scalia has earned his moment of national respect.
The petty politics immediately intrude, though, and there’s the legally-required matter of how to replace such an irreplaceable man. While we hate to presume what such a more learned jurist as Scalia might opine, our reading of the plain language in the Constitution suggests that Obama has every constitutional right to name an appointee at a time of his choosing, the Senate has every constitutional right to ignore it at its own leisure, and our guess is that Scalia wouldn’t mind a bit if the inevitably messy fight stretched out noisily into the next presidency. If the next president is Sanders or the soon-to-be-constitutionally-protected-from-criticism Clinton, a lot of those 5-4 decisions from the good old days of the plain meaning the Constitution will suddenly mean that the the First Amendment doesn’t allow criticism of public officials and the Second Amendment doesn’t guarantee a right to keep and bear arms, and the rest of the Constitution will mean whatever five black-robed jurists and fickle pubic opinion think it ought to mean. At the moment the the front-runner for the Republican nomination has mentioned his sister, who authored a soon-to-be-overturned opinion finding a right to late-term abortion, would make a “phenomenal” Supreme Court Justice, and who joined in a ridiculous politically-correct outcry that Scalia was racist for questioning the effect that affirmative action admission policies at universities have on its supposed beneficiaries, and although the rest of the field are making more reasonable suggestions their party doesn’t have a good track record of lately finding jurists such as the Reagan-appointed Scalia. Our guess is that the even the most weak-kneed Republicans won’t dare allow a lame duck appointment, and after a respectful moment or two the Democrats will revert to screaming about censoring anti-Democrat speech and compelling same-sex-wedding-cake-baking laws, and that there’s no guessing how that might come out. So far even the squishiest Republicans are digging in their heels, Obama has backed off a recess appointment, and we don’t think there’s much sentiment in of the recently outraged parties for a new Supreme Court Justice to ban anti-Hillary Clinton speech and repeal gun rights and whatever else five black-robed justices might come up with, so we’ll hold out hope.
Such petty politics aside, we’ll also take a moment to note that by all accounts Scalia was a good man. He was a devoted husband for 56 years, beloved father to nine children, and was such a remarkably genial gentleman that he even maintained a famously affectionate relationship with his constant nemesis Justice Ruth Bader Ginsburg. He once spoke at the high school graduation ceremony of one of his many grandchildren, and we think he spoke best for himself when he urged them “not just to be zealous in in the pursuit of your ideals, but to be sure that your ideals are the right ones. That is perhaps the hardest part of being a good human being. Good intentions are not enough. Being a good person begins with being a wise person. Then, when you follow your conscience, you will be headed in the right direction.”
We pray that Justice Scalia’s wisdom has led him in the direction to eternal peace, after so many years of toil on this troublesome earth, and that somehow the rule of the law and the God-given rights of the people it is meant to protect will persist through the passing of the generations.
— Bud Norman