US Supreme Court Justice Antonin Scalia is being remembered for wit, charm, intellect, but most important for being a good father, husband and grandfather.
He was the hero of social conservatives. Scalia considered himself a strict constructionist of the US Constitution, refusing to deviate from literal words of the document. Scalia railed against anyone, especially his fellow justices, who believed the US Constitution a living, breathing document.
The justice preferred to think a “dead constitution” the best kind and advocated for change through constitutional amendments and laws passed in Congress or state legislatures. It sounds reasonable on the surface, but such an approach has the potential to undermine justice.
As an originalist he often criticized liberal judicial activism as a form of social engineering by using an ancient document to embrace what appeared to be cultural trends or political correctness.
Yet Scalia’s textualism was also a form of judicial activism by attempting to limit justice to popularly elected, highly politicized legislative bodies. If the majority didn’t want something, then it shouldn’t occur.
Justice, however, is about furthering fairness while drawing on perspective and understanding. It’s a call to objectivity and balancing interests that appear competing. Justice keeps law in check when its mantle of legitimacy is used for illegitimate purposes.
It would have been difficult for the US Supreme Court to chip away at segregation had it used an originalist interpretation. Should America have waited for state legislatures to do away with this evil?
Few would disagree with the high court’s decision in Brown v Board of Education. Yet could the court have reached the outcome it did through a strict constructionist interpretation and by deferring to state legislatures to remedy a moral wrong?
Don’t forget the popularly elected Gov. George Wallace who infamously declared “Segregation now, segregation tomorrow and segregation forever.” He had the full support of a democratically elected legislature. It’s an example of how federalism can fail.
Yes, there is a role for courts to administer justice that may run contrary to law or majority will. Is it a form of judicial activism? Of course. But not all activism is bad when it seeks to right a wrong that a legislative body is incapable of doing.
An over reliance on legislative bodies, as Scalia underscored, does not further justice. Justice has never been about what the majority wants. It’s about a reasoned approach sometimes reigning in the politics and the legislative mediocrity that can dominate the process. Because a majority has declared its will to deny, oppress, or withhold doesn’t make it just or right.
Even if greater deference is given to legislative bodies, how effective or democratic are the outcomes in light of the inordinate influence of deep-pocketed special interests?
Because an elected legislature has determined an outcome doesn’t make it moral or ethical. Law and justice are not interchangeable. Optimally, law should enhance and further justice and when the need arises justice must reign in law run amok.
US Supreme Court justices are appointed for life and are, theoretically, insulated from some of the social and political pressures influencing legislative bodies. Politics and governing is often about pragmatism, opportunism, and gamesmanship. The judiciary should be, though falls short, removed from various kinds of power dynamics.
This does not mean a judicial body can or should have indiscriminate veto power over legislative or regulatory bodies. That would be wrong. It does mean, however, there is a place for a level-headed safeguard used with restraint, discretion and prudence.
Scalia was a good man who made a mark, but was he a great justice in the context of justice? Or was he a great legalist?
Paul Jesep is an attorney and corporate chaplain. He is author of “Lost Sense of Self & the Ethics Crisis: Learn to Live and Work Ethically”.