My favorite line about Antonin Scalia was one I cribbed from Molly Ivins, that I preferred to read Scalia's opinions in the original German. That's really not respectful of a man who was arguably the most important associate justice in the Court's history. But that, too, is a story of what was and what could have been.
Did I say "arguably the most important associate justice"? Yes, we've had great ones - Brandeis, Holmes, John Marshall Harlan, who wrote the hauntingly prescient dissent in Plessy v. Ferguson, Hugo Black - but I'm not seeing anyone who had as much impact on the development of Constitutional law, with one exception. Scalia was a brilliant advocate of his doctrine of textualism, interpreting the Constitution by focusing on the meaning of the words, as they were used at the time of the Framing. There are problems with that, but none of the other justices was any match for Scalia on that level. When Scalia wrote the opinions in District of Columbia v. Heller and McDonald v. City of Chicago, recognizing the right to bear arms as a personal, rather than collective, one, everyone was arguing on Scalia's battlefield. Nobody was contending that maybe things should be adjusted a tad, because the Framers wouldn't have had any concept of modern weaponry.
William Brennan would have made that argument. He's the exception I mentioned. Brennan was an unapologetic advocate of judicial activism, arguing that the Constitution's "genius" was in "the adaptability of its great principles to cope with current problems and current needs." He was the driving force behind the Warren Court, and crafted a number of decisions that radically changed America, like the "one-man-one-vote" case, his expansion of the equal protection clause to sex discrimination, the New York Times v. Sullivan decision, which rewrote the law of libel, and Monell v. Dept. of Social Services, which held that welfare beneficiaries were entitled to a hearing before their benefits were cut off, and revolutionized the concept of due process.
And looking at it more closely, I've got to give the nod to Brennan. Scalia might have changed the method of constitutional interpretation, but Brennan changed the law. One reason is that Brennan was a master of building coalitions; even as late as 1989, he managed to hobble together five votes to strike down the Federal statute banning the burning of the American flag. (And one of those five was Scalia.)
Scalia, on the other hand, basically used his acerbic pen to bully his colleagues into line, with little success. A devoutly religious Catholic - Scalia and his wife had nine children - overturning Roe v. Wade became one of his life missions. The 1989 case of Webster v. Reproductive Health Services provided just that opportunity, but Sandra Day O'Connor, despite having previously written opinions critical of Roe, shied away from overruling it, finding the case on Missouri's abortion restrictions an unsuitable vehicle for doing so, and writing that when the right case came along, "there will be time enough to re-examine Roe. And to do so carefully."
Scalia went into Beast Mode, writing a dissenting opinion which labeled O'Connor's position as an "irrational" one that "cannot be taken seriously." This would not be the first nor the last time that Scalia ripped into a colleague, but it proved singularly ineffective. Three years later, in Planned Parenthood v. Casey, O'Connor joined with four other justices to preserve Roe.
In fact, the case against Scalia as the conservative icon is undermined by the fact that his record of accomplishment, certainly in comparison to Brennan's, is rather paltry. The real issue for conservatives when it comes to the Supreme Court is reining in the power of government. While there have been some incremental restraints, such as last week's ruling blocking President Obama's plan to curb carbon emission and earlier decisions somewhat limiting the scope of the Commerce Clause, the Federal leviathan remains largely untamed.
That's not to suggest that Scalia's record is one of abject failure. His decision in Blakely v. Washington reinvigorated the right to jury trial, and led to the Federal sentencing guidelines becoming advisory, rather than mandatory. Heller and McDonald changed two centuries of Second Amendment jurisprudence. And his opinion in Crawford v. Washington radically altered the law on the Confrontation Clause.
Even with those, though, there are some quibbles. Scalia found himself on the other side of the two most recent Crawford cases (dissenting in Michigan v. Bryant and concurring only in judgment in Ohio v. Clark), and if you believe that the trend is your friend, it's questionable whether Crawford will long survive Scalia. And the practical impact of Heller and McDonald is unclear; few states or cities have the restrictions on firearm possession that were in issue in those two cases, and there doesn't seem to be much enthusiasm among the lower courts for extending those decisions.
But Lord, the man could write. Here's his dissent in a case on state aid to religious schools:
As to the Court's invocation of the Lemon test: 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.
And from his dissent in the gay marriage case:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that all persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
And my all-time favorite, from his dissent in the case allowing Maryland to take the DNA of arrested suspects:
Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
He'll be missed.