WASHINGTON — Last June, as the nation reacted to the U.S. Supreme Court’s landmark 5-4 decision in Obergefell v. Hodges that legalized same-sex “marriage,” the fiery critique of one dissenting justice was heard above the ensuing furor.
Justice Antonin Scalia described the majority’s ruling, which swept aside state laws that had effectively barred legal marriage for same-sex partners, as a “judicial Putsch” that threatened democratic governance.
“[A] system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” stated Justice Scalia.
His nine-page dissent reflected his strict adherence to an “originalist” interpretation of the U.S. Constitution that looks to the Founding Founders’ stated intent and rejects the notion of a “living Constitution” that can be adapted to changing mores.
While partisan groups celebrated the Obergefell decision and the White House was bathed in rainbow lights, Scalia’s widely circulated dissent marked his outsized role on the court’s conservative wing, almost 30 years after his nomination by President Ronald Reagan in 1986.
But on Feb. 13, the nation reacted in shock to news that Scalia had died, after his body was found in his room at a Texas hunting resort. He was 79, and the cause of his death has not been officially confirmed, though he is suspected to have suffered a heart attack.
In a statement that expressed his deep personal sadness at his colleague’s unexpected death, Chief Justice John Roberts described the late justice, one of five Catholics on the high court, as “an extraordinary individual and jurist, admired and treasured by his colleagues.”
“His passing is a great loss to the court and the country he so loyally served,” the chief justice added.
He extended the court’s “deepest condolences to his wife, Maureen, and his family.”
The father of nine children, including one priest — Father Paul Scalia, a priest in the Diocese of Arlington, Va. — and 26 grandchildren, Antonin Scalia was a committed Catholic who affirmed Church teaching on abortion and on marriage as a union of one man and one woman. But he openly disagreed with the Church’s stance on capital punishment.
“Justice Antonin Scalia was a man of outstanding legal genius and deep Catholic faith,” said Archbishop Charles Chaput of Philadelphia in a statement marking the death of the court’s first Italian-American justice.
“I had the privilege of knowing and engaging him personally; disagreeing with him on matters like the death penalty; but agreeing with him on so many other issues and admiring his extraordinary moral integrity.”
“In an age of superficial executive and legislative leadership, he grounded the American project in the great and original character of the Constitution. He will be sorely missed; but he has left an unforgettable witness of faith and reason in service to the common good,” said Archbishop Chaput. “May God grant him eternal joy and our nation a replacement of similar moral character.”
Friends and colleagues echoed Archbishop Chaput’s warm praise and applauded his consistent application of “originalist” principles to a range of cases.
Praise From Mary Ellen Bork
Mary Ellen Bork, the wife of the late Judge Robert Bork — another towering proponent of originalism, whose nomination to the high court by President Reagan was aggressively blocked by the Democrat-controlled Senate — also celebrated Justice Scalia as “a man of great faith. I would often see him at early Mass on Sunday at my parish.”
Anthony Bellia Jr., an authority on the Constitution at the University of Notre Dame Law School, clerked for Justice Scalia during the court’s 1997-98 term. He recalled Scalia’s enduring reputation as a beloved mentor to his law clerks.
“One of the most valuable lessons that I learned from him is that public service requires elevating the common good over self-interest and personal preference,” Bellia told the Register.
“Justice Scalia believed that there is a difference between law and politics,” Bellia added. “Specifically, he believed that judges should decide cases in accordance with the original meaning of the Constitution and the text of federal laws, rather than in accord with their own political preferences — and he did his best, case by case, to fulfill that duty.”
Yet within hours of his death, a partisan battle over Scalia’s replacement quickly erupted.
The late justice was a member of the high court’s conservative wing, which includes Chief Justice Roberts, Justice Samuel Alito, Jr. and Justice Clarence Thomas. The four justices secured a number of landmark decisions, including the 2014 Hobby Lobby ruling, often with the help of Justice Anthony Kennedy, also a Catholic and the court’s swing vote.
But shortly after Scalia’s death was announced, Majority Leader Mitch McConnell, R-Ky., asserted that President Barack Obama should not attempt to fill the vacancy.
“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell stated on Feb. 13.
No doubt, McConnell feared that the balance of power on the court would shift to the liberal wing, following the confirmation of Obama’s nominee.
The White House quickly countered that the president would make his choice known in the next couple of weeks. Meanwhile, the dispute served to remind the public that the nation’s highest court has increasingly become the final arbiter of contentious policy debates, rather than Congress.
“The tug of war we are seeing now is a result of the court’s decision in Roe v. Wade and in cases like Obergefell v. Hodges,” John Garvey, a constitutional scholar and the president of The Catholic University of America, told the Register.
Born in 1936, Antonin Gregory Scalia — called “Nino” by everyone who knew him — was the only child of an Italian immigrant father who became a professor and a mother who worked as a an elementary-school teacher. The family settled in Queens, N.Y., and their son would become a star student at his Catholic high school and then at Georgetown University.
“If we will not be leaders of a real, a true, a Catholic intellectual life, no one will,” “Nino” Scalia exhorted his classmates during his speech as the valedictorian for Georgetown’s class of 1957.
That striking commitment to his Catholic faith and its natural-law foundations remained unshaken as he moved on to Harvard Law School, where he was the editor of the Harvard Law Review.
“Although the briefest of bios might suggest working-class roots — son of Italian immigrants, reared partly in Queens, attended Catholic high school in Manhattan, described so often professionally as a fighter — his father was, in fact, a professor, and Justice Scalia was a genuinely cultured man,” noted Gerard Bradley, a professor at Notre Dame Law School. “Still, he utterly lacked pretense; what you saw is what he was. He was supremely devoted to the law. But he was even more devoted to his wife and children and to the Catholic faith.”
Scalia married Maureen McCarthy, a Radcliffe student he met during his time at law school, and the couple had nine children.
Over the years, he suggested that the give-and-take of family life honed his respect for justice under the law.
“Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions — no television in the afternoon or no television in the evening or even no television at all,” he told his audience at a 1989 lecture at Harvard. “But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed.”
Unanimous Confirmation in ’86
After law school, he took a job at the law firm Jones, Day, Cockley and Reavis. But in 1967, he left to teach at the University of Virginia Law School.
His career in public service began in 1972, when he was named general counsel for the Office of Telecommunications Policy in the Nixon administration and subsequently was appointed assistant attorney general for the Office of Legal Counsel in 1974 under President Gerald Ford.
He would return to teaching during a stint at the University of Chicago Law School, until President Reagan appointed him to the Court of Appeals for the District of Columbia in 1982.
Just four years later, he and Bork were placed on the Reagan administration's short list for the Supreme Court. After Scalia made the final cut, he was unanimously confirmed by the Senate and quickly become an influential voice on the court.
“It is hard to overstate Justice Scalia’s effect on the modern court,” noted The Washington Post’s obituary.
“Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions.”
He was an unapologetic opponent of abortion rights and other newly identified sexual rights, and he enjoyed skewering politically correct elites, who promoted racial and gender diversity but had no patience for religious believers who followed biblical teachings on life and marriage.
“Our educational establishment these days, while so tolerant of and even insistent on diversity in all other aspects of life, seems bent on eliminating the diversity of moral judgment, particularly moral judgment based on religious views,” said Justice Scalia, during a 2011 speech at Duquesne University Law School.
In a 2002 First Things article on capital punishment, he sought to challenge advocates of a “living Constitution” and clarified his own obligation to interpret the U.S. Constitution as the Founders understood it.
Taking up the question of whether capital punishment should be found unconstitutional, he explained that the Constitution “I interpret and apply is not living, but dead — or, as I prefer to put it, enduring.”
The death penalty “was clearly permitted when the Eighth Amendment was adopted. … And so it is clearly permitted today,” he argued.
If voters wished to outlaw capital punishment, the “instrument of evolution … is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the 50 states.”
This philosophy was applied to a variety of legal arguments, from gun rights to affirmative action.
And until a few days ago, advocates before the court kept his views in mind as they prepared for oral arguments in two cases of special interest to Catholics: a Texas abortion-rights case and the Little Sisters of the Poor’s efforts to win an exemption to the HHS contraceptive mandate.
But Scalia’s seat will be vacant when the oral arguments are scheduled next month, and that means the ideologically split court could produce deadlocked decisions. If that happens, a case could be kicked back to the lower court, or a re-argument could be ordered, to take place after the court returns to a full complement of nine justices.
“Changing the balance of votes on the court has become a political question. But if you took Roe v. Wade and sexual politics out of the equation, it would be a relatively easy matter to find someone suitable,” suggested Garvey.
“If we had followed Justice Scalia’s advice, the temperature would go down, and the disagreement we are having would be relegated to the political realm.”
That insight, and many other lessons from the high court’s first Italian-American justice, will be cherished by his friends and colleagues in the months to come.
"Justice Scalia was an exceptional jurist who, by force of reason and principle, transformed debates over constitutional law and the role of courts in our federal system,” said Notre Dame’s Bellia.
“His sharp intellect, quick wit and commitment to principle were unfailing. More importantly, his witness to the things in life that matter most — including faith and family — was constant.”
Joan Frawley Desmond is the Register’s senior editor.