In Praise of Antonin Scalia, the Gold Standard for Conservative Thought
The late justice combined wisdom and humor, enabling him to connect with Americans
The death of Associate Justice Antonin Scalia leaves America poorer. Our country has lost not only an eminent jurist, but also a witty, humorous person who could explain the law in a way that normal people could understand. In addition, Scalia’s passing crystallizes the importance of the presidential election. For better or for worse, the Supreme Court is a far more important and politically sensitive institution in our government than it ever was before.
“Scalia’s importance on the court cannot be exaggerated, and his loss will have immediate implications.”
President Obama said he will nominate a replacement for Scalia, but Senate Majority Leader Mitch McConnell announced that no one will be confirmed before the election in November. McConnell will prevail, of course, setting up yet another source of contention between the parties in the months ahead. The question of Scalia’s replacement featured prominently in the Republican debate.
A proponent of debate
I first met Scalia when I worked in the White House under President George H.W. Bush. In 1992 a small group of us young staffers invited Scalia to breakfast. He expressed disappointment that there was not more interaction among the justices on the court and more discussion of the cases. He also told us that having nine children was a little like making pancakes at breakfast; if the first one didn’t work out, you still had the others.
Immediate implications
Scalia’s importance on the court cannot be exaggerated, and his loss will have immediate implications. Last week the Supreme Court voted 5-4 to issue a stay to block President Obama’s Clean Power Plan, leaving its fate to the next president. If Scalia had died a week earlier, the stay would not have been issued. The Clean Power Plan would have required states to band together to reduce carbon emissions from electricity generation and factories, lowering economic growth. As I wrote in August, the Clean Power Plan is an example of how “federal agencies can willy-nilly impose uncalculated costs on the public without being accountable to anyone, least of all the public.” Scalia’s vote, and that decision, could potentially save the United States billions of dollars.
The word on the street is that the Supreme Court was about to issue a decision in Friedrichs v. California Teachers Association, a case that would have decided the fate of public-sector unions in America. Rebecca Friedrichs, a California teacher, is suing the CTA on the grounds that compulsory union membership violates the principles of free speech and association. I wrote in July that she wants to opt out of the union on the grounds that her dues are used for political purposes.
If state government workers are allowed to opt out of joining unions, as is the case with federal government workers, many will choose not to join, reducing the power of public-sector unions. The case likely would have gone for Friedrichs. Without Scalia, it will be harder, if not impossible, to get a Supreme Court majority in favor of Friedrichs.
“Justice Scalia had become the gold standard for conservative intellectual thought on the court.”
Friedrichs v. CTA is just one of many cases that are due to be decided by the Supreme Court this year. The court will decide on whether it is legal for President Obama to stop enforcing immigration laws and unilaterally allow classes of undocumented workers to stay. It is also considering whether affirmative action is legal at the University of Texas. Scalia’s death will affect the outcomes of those and other cases.
Witty writing
Scalia’s opinions were written clearly and wittily. Two examples from the 2014 term illustrate his mastery of language. In his dissent to King v. Burwell, in which the Supreme Court concluded that Obamacare premium subsidies are available to those on federal exchanges, he wrote: “The Act that Congress passed makes tax credits available only on an ‘Exchange established by the State.’ This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”
In his dissent in Obergefell v. Hodges, the same-sex marriage case, Scalia wrote: “Of course the opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)”
Justice Scalia had become the gold standard for conservative intellectual thought on the court. The next president will nominate a successor. And, of course, someone will take Scalia’s place on the Supreme Court bench, but no one will completely replace his wisdom or humor.
This piece originally appeared in WSJ's MarketWatch
This piece originally appeared in WSJ's MarketWatch