Most of all, the justice was a servant of the Constitution
by Horace Cooper • Washington Times
Justice Antonin Scalia’s passing extinguished a great light in American jurisprudence. As the tributes and fond remembrances all attest, America grieves this loss.
Appointed by President Reagan in 1986, Justice Scalia served the nation from the Supreme Court’s bench for three decades with a candor, wit and sagacity that few men in history can claim. No doubt that the good justice will be remembered for his pointed pen and rhetorical flair that made all his opinions — whether you agreed with him or not — well worth reading.
Sometimes irascible, very often funny, but always genuine, Justice Scalia’s opinions, dissents and concurrences did not pull punches. On the court’s own lack of judicial restraint he chided: “This Court seems incapable of admitting that some matters — any matters — are none of its business.” On race in America he wisely observed: “The relevant proposition is not it was blacks, or Jews, or Irish who were discriminated against, but that it was individual men and women, ‘created equal,’ who were discriminated against. And the relevant resolve is that it should never happen again.”
And then there was his famous reminder to those not ready to uphold a killer’s conviction because the eye witnesses “only” saw the killer’s face: “Facial features are the primary means by which human beings recognize one another. That is why the Lone Ranger wears a mask instead of a poncho.”
But Justice Scalia’s lasting legacy lies not in the catchy sound-bite or wicked turn of phrase. Nor does it rise and fall with some legal revolutionary movement — although some understandably might remember him that way. Rather his contribution, his great gift to the country and the law was not innovation, but principle.
Mourning the loss of Justice Scalia I am reminded of Thomas Jefferson’s description of our founding document: “This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before, but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. It was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.”
Justice Scalia did not seek out new principles, new arguments, new legal doctrines or understandings of the law or the Constitution. He sought to understand the meaning of the Constitution as it was written there on the parchment. He looked for the meaning of the law before him, the law that Congress — whether the first or the most recent — actually enacted, and he sought merely to understand and interpret it.
Before Justice Scalia’s arrival at 1 First St. N.E. in Washington, the Supreme Court for decades had paid only the faintest attention and lip service to such “outmoded” notions, preferring instead to consult the “legislative histories” of the law rather than the law itself, or to divine some new constitutional right or imperative from an organic, “living” Constitution that might mean something new today that it did not mean yesterday. He once lamented that “Day by day, case by case, the Supreme Court is busy designing a Constitution for a country I do not recognize.” And, alas, he was right.
But through the sheer force of his reasoning and persuasive rhetoric, Justice Scalia began, slowly, to turn the legal conversation on the court, as well as in the courtrooms and the classrooms. Today, after 30 years under his tutelage, it is not uncommon for lawyers, judges and even Justice Scalia’s philosophical opponents on the bench beside him to begin their arguments with a thorough discussion of the Constitution’s text itself. And for that, to borrow from Mr. Jefferson, for “placing before mankind the common sense of the subject, in terms so plain and firm as to command their assent,” we the people are eternally grateful.
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Horace Cooper is a legal commentator and partner with Monument Communications.