Two Sides to Antonin Scalia

By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

During Justice Antonin Scalia’s tenure on the Supreme Court, he authored many contentious and heavily conservative opinions. Thus, when he passed away unexpectedly on Saturday, many liberals celebrated his death, or at least his future absence on the Court. [1] As a political liberal, I am fascinated by the political implications of the absence of one of the most polarizing justices on the Supreme Court just months before the most polarizing presidential election in decades; moreover, I am excited for upcoming cases in which the political bend of the Court will be swayed. However, while I cannot name a single one of his decisions that I agree without major reservations, I mourn the passing of Antonin Scalia as a scholar of the Constitution.

Scalia’s constitutional theory was old-fashioned, but his titanic personality and intellect brought it back into style—and public debate—during his tenure as an associate justice. Constitutional originalism, the idea that judges should interpret the Constitution solely based on its meaning at the time it was written, had been popular during the mid-twentieth century; by the time President Reagan nominated Scalia to the Court, however, the theory had fallen out of favor with most legal theorists. [2] Scalia came into the public eye with his variation on originalism: rather than scouring it for intent, constitutional scholars and judges should instead base their decisions on the original meaning of the words in the text. [3]

As such, he viewed his own role as a Supreme Court justice as a messenger of the Constitution, and believed that his own moral standards should not interfere with what he believed the Constitution to be saying. During his Senate confirmation hearings in 1986, then-Senator Joe Biden questioned Scalia heavily on his reputation as an originalist. Scalia’s defense of originalism contextualizes his career and many of his rulings on the Supreme Court:

“I am deeply mistrustful of my ability, without any guidance other than my own intuition, to say what are the deepest and most profound beliefs of our society. And that’s what it means to say that something is constitutionally required. It is in accordance with the deepest and most profound beliefs of our society…Senator, I worry that I am left with nothing to tell me what are our most profound beliefs except my own little voice inside. And I do not want to govern this society on the basis of that.” [4]

Justice Scalia viewed the Constitution as the “law the people have adopted,” [5] and thus believed that it was his duty to the people as a public official to further that law through his Supreme Court decisions and recommendations. Otherwise, he would be allowing his personal moral principles to compete with the law, which would be a step towards tyranny. His assiduous efforts to avoid the tyranny of a few led him to side, often seemingly blindly, with severely-outdated, bigoted, and discriminatory laws in the Constitution.

Justice Scalia describes his job as one of a civil servant bound to reiterating the law—in modern language—as it has been stated in the Constitution, regardless of his own personal beliefs. This self-portrayal, however, may ring false, since it is well known that Justice Scalia was a devout Catholic and a political conservative. Although he claimed that he was often at the mercy of laws with which he disagreed, many of his opinions, either as majority opinions or dissents, aligned with what the public perception has been of his personal beliefs. This tension is especially apparent in the most historic and emotionally charged cases, such as those on gay marriage, the Affordable Care Act, anti-sodomy laws, and the Equal Protection Act.
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Scalia did indeed often agree with many of the sometimes-bigoted views that he advanced in many of his official writings for the Court. While there is no excuse for the bigotry throughout his judicial writing, and is impossible to reason away the trauma and suffering that his decisions caused for millions of people, this does not change the fact that Justice Scalia’s decisions were unfailingly based on the letter of the law, sometimes to a fault, even though the language with which he defends these decisions is vitriolic. He claimed that neither he nor anybody else was qualified to decide when there should be compassionate deviation from the Constitution in judicial decisions.

The question, then, is how to honor Justice Scalia’s death. He made it clear throughout his career that there were two sides to every good judge: the personal and the judicial. As a private citizen, Antonin Scalia from Trenton, New Jersey, was certainly flawed and, from his personal communications, seemed to have held bigoted or discriminatory personal beliefs. As a judge, Associate Justice Scalia was a brilliant, devoted constitutionalist and an assiduous writer. All his writing for the Supreme Court as justice were based on precise—albeit controversial—readings of the Constitution.

I mourn Antonin Scalia’s, the private citizen’s, death as I would that of any other person whom I did not know, who died of a heart attack in his sleep at 79. I mourn the Associate Justice’s death for his contributions to constitutional law and originalism, even if his work is now a warning of its dangers. I will think of his contributions to constitutionalism, but I will also think of all the people who suffered as a result of his strict adherence to originalism. I will hope for a time when the sweeping promises of equality and freedoms in the Constitution are honored and celebrated, while the bigoted and discriminatory aspects are seen as historically important, but as nothing more than relics of the past to be amended.


[1] Adam Liptak, “Antonin Scalia, Justice on the Supreme Court, Dies at 79,” The New York Times, February 13, 2016, http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html.
[2] N. P. R. Staff, “Originalism: A Primer On Scalia’s Constitutional Philosophy,” NPR.org, accessed February 23, 2016, http://www.npr.org/2016/02/14/466744465/originalism-a-primer-on-scalias-constitutional-philosophy.
[3] Jamal Greene, “Liberal Love for Antonin Scalia,” The New York Times, February 14, 2016, http://www.nytimes.com/2016/02/15/opinion/what-liberals-learned-from-antonin-scalia.html.
[4] “Hearings Before the Committee on the Judiciary, United States Senate, Ninety-Ninth Congress, Second Session, on the Nomination of Judge Antonin Scalia, To Be Associate Justice of the Supreme Court of the United States.” S. HRG. 99-1064. U. S. Government Printing Office, Washington: 1987. pg. 101.
[5] “Supreme Court Justice Scalia,” C-SPAN.org, accessed February 23, 2016, http://www.c-span.org/video/?286079-1/supreme-court-justice-scalia.
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Photo Credit: Flickr User Stephen Masker

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