Political tensions were high on March 28, 2012. All eyes were fixed on the Supreme Court, where the constitutionality of Obamacare and its individual mandate would be decided by the nine most influential judicial minds in the country. The cornerstone of the president’s legacy, the historical legacy of the Court and the health care of millions of Americans were on the line. It was at this moment that Justice Scalia saw an opportunity to work the audience, asking one of the attorneys, “What happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” implying that to read the entire law would be cruel and unusual punishment. This humor and levity will be sorely missed with the passing of the Supreme Court’s conservative anchor.
The vacancy left by the 79-year-old jurist Saturday morning has thrown the political world into chaos; President Obama has promised to nominate a replacement, while Mitch McConnell and the GOP-controlled Senate plan to block any confirmation before the next administration. Meanwhile, three current presidential candidates sit in the Senate and will cast a vote on a nominee who would otherwise be theirs. Political pundits and journalists are calling Scalia’s death a monumental loss for conservatives, and liberals will inevitably see this as an opportunity to push the Supreme Court left. As a liberal, however, I would like to take this opportunity to mourn the loss of a brilliant legal mind and his unique brand of conservatism.
It may be difficult for liberals, who have long painted Scalia as the judicial equivalent of Archie Bunker, to reconcile their beliefs with his textualism. But this is a lazy oversimplification of one of the most brilliant lawyers of the 21st century. Though rare, Scalia had his liberal moments over the course of three decades on the bench. In Hamdi v. Rumsfeld, he railed against the Bush administration’s suspension of habeas corpus and its treatment of prisoners in Guantanamo Bay. He consistently sided with the liberal justices in cases involving law enforcement and the protections of the Fourth Amendment. Perhaps most importantly, he cast the deciding vote in Texas v. Johnson, invalidating a law against flag burning and upholding a patently liberal interpretation of the right to free speech.
Though a hero to the political right, Scalia exemplified professionalism and a refined political discourse, separating a person from their beliefs. By liberal and conservative colleagues alike, he was affectionately referred to as “Nino”, and known as much for his love of opera as for his infectious laugh. Perhaps most famous was his long friendship with ideological opposite Ruth Bader Ginsburg, who once said of Scalia, “I disagreed with most of what he said, but I loved the way he said it.” His response: “What’s not to like — except her views on the law.”
Beyond the camaraderie and respect he showed for his intellectual adversaries, Scalia presented a compelling view of what a judge should be. “We don’t sit here to make the law, to decide who ought to win. We decide who wins under the law that the people have adopted. And very often, if you’re a good judge, you don’t really like the result you’re reaching.” In his opinions, he quoted Sesame Street and Shakespeare. He called an argument “pure applesauce” and responded to a reporter with a Sicilian gesture synonymous with profanity. There may never be a justice as colorful as Antonin Scalia.
Even if one cannot appreciate the personality and flair he added to the high court, liberals should commemorate the ways in which Scalia’s conservatism helped refine their beliefs. Where would the concept of a “living” Constitution be if it had not been crafted in response to the emergence of originalist jurisprudence?
And that’s what needs to be appreciated about Justice Scalia. In stark contrast with the fear-mongering brand of conservatism that runs rampant today, full of platitudes about American values and radicalism, Scalia based his philosophy on the Constitution. He based it in irrefutable text and extensive research into what the Founding Fathers were thinking when they put pen to paper.
Disagreeing with “conservatives” like Donald Trump and Ted Cruz is easy. Drumming up an argument against a wall on the Mexican border, anti-Muslim rhetoric, ostentatious foreign policy or disparaging women is easy. What is infinitely harder is to read Scalia’s defense of Second Amendment rights in District of Columbia v. Heller and figure out why you disagree with it. To piece apart his dissents on Obamacare and same-sex marriage is to investigate what it means to be a liberal and how the Constitution not only factors in, but also dictates the rhetoric of the American left.
I believe in a living Constitution. I look at the vast majority of Scalia’s career and my brow furrows in disagreement as his brilliant prose takes aim at my core beliefs — from affirmative action to a woman’s right to choose and everything in between. Nine times out of 10, I will disagree. But 10 times out of 10, I will be challenged and will walk away a better liberal for the experience.
In this hyper-politicized climate, Antonin Scalia’s passing will be framed in terms of winners and losers. Will Obama be the first president since Reagan to succeed in naming three Supreme Court justices? Which candidates will get a bump in the polls as a result of their support or opposition during the nominating process? Can the Senate GOP hold out for 11 months? Ultimately, though, there are no winners. Conservatives lost their champion, and liberals lost the man who represented reasonable opposition and, maybe more than anyone else, helped define the constitutional debates of the past 30 years.
Correction appended: A previous version of this article stated Scalia made his statement regarding Obamacare on June 28, 2012. It has been corrected to March 28, 2012, which is when Scalia voiced his stance during the oral arguments.
Brett Graham can be reached at firstname.lastname@example.org.