Remembering Antonin Scalia

Ten years have passed since the untimely death of Justice Antonin Scalia, yet the man remains the intellectual leader of the Supreme Court and the defining legal thinker of our era.

When President Ronald Reagan appointed Scalia to the U.S. Court of Appeals for the D.C. Circuit, often regarded as first-among-equals of the nation’s intermediate federal courts, he served with giants like Robert Bork and Ruth Bader Ginsburg. He held his own in that elite company, but his intellect did not truly shine forth until his nomination by Reagan to the Supreme Court in 1986, in a shuffle with the retiring Chief Justice Warren Burger and the promoted William Rehnquist. He was confirmed 98-0, back when that was still possible.

Though Scalia started as the junior justice on a bench, serving with liberal lions like William Brennan and Thurgood Marshall, he did not hesitate to promptly begin advancing his signature legal insights—textualism, when applied to statutes, and originalism, when applied to the Constitution. The basis of both theories is the same: that judges should read and apply the actual text of the law before them, rather than the unenacted and amorphous purpose or intent of the law’s drafters.

In just shy of 30 years on the bench, Scalia returned over and over again to these core themes with wit, verve, and abounding confidence in the correctness of his ideas. And he did so with a pen that sang with both smarts and sharp elbows. Here’s one of my favorites, from an Establishment Clause case in 1993: “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.”

The Lemon test is gone today, replaced in Kennedy v. Bremerton School District (2022) by a history-and-tradition test that would make Justice Scalia proud. Another of Scalia’s permanent bugaboos, Roe v. Wade, is equally a relic now, overturned by Dobbs v. Jackson Women’s Health Organization (2022). He also shifted the law in his own time, for instance with his Second Amendment decision Heller v. District of Columbia (2008).

Two of Scalia’s opinions often criticized by conservatives have undergone significant revision. Though not its author, Scalia often defended the Supreme Court’s Chevron decision (1984), which gave a significant measure of deference to bureaucrats in their interpretation of federal laws. Chevron has since joined Roe in the dustbin of discarded opinions thanks to Loper Bright Enterprises (2024).

Many conservatives are equally skeptical of Scalia’s originalism in Employment Division v. Smith (1990), which took much of the force out of the First Amendment’s Free Exercise clause. Smith is still on the books, but the law has moved in a decidedly more religious-liberty-friendly direction with the Supreme Court’s Tandon v. Newsom decision (2021), which ensures Smith cannot be misread to give religion a second-class status.

These developments since his death are a tribute to the courage and wisdom of several key players. Justice Scalia’s untimely death was almost a disaster for conservatives, taking place in the final year of President Obama’s term. Senate Republican Leader Mitch McConnell and his caucus held the line, giving us Justice Neil Gorsuch after the unexpected election of President Donald Trump. Now he’s joined by Justice Amy Coney Barrett, herself a former Scalia clerk. President Trump awarded Justice Scalia a posthumous Presidential Medal of Freedom in 2018.

The Justice’s legacy has also benefited greatly from publication of the first volume of a planned three-part biography by journalist James Rosen, a collection of his most important legal writings, and a compilation of his speeches (of the three, the best choice for lay readers, a true delight).

Justice Scalia was a great man, lawyer, and judge—he was also a father, husband, and faithful Catholic Christian. His encouragement to his fellow believers is a clarion call to continue his work for the years to come: “If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”

Justice Scalia stood up to the entire legal academy on behalf of his beliefs. Three decades of persuasive and persistent advocacy for his views turned the legal world upside down, and though he still isn’t given his due by the academy, no one can question his courage, even as his convictions are now the law of the land.