Celebrate the Life, Not the Death of Scalia

Justice Antonin Scalia has left us with a fierce political fight. Hours after his death, Senator Mitch McConnell promised to block any nominee that President Obama sends his way. Republican candidates tripped over themselves rushing to back this hardline stance. Across the aisle, Democrats quickly seized an opportunity to attack the GOP. Senator Elizabeth Warren wrote on Facebook that the Senate has a duty to consider nominees, and that by refusing to do so, McConnell proves that “all the Republican talk about loving the Constitution is just that — empty talk.”

Buckle up! This kind of bickering will be all over the news in the coming months, at least until the election in November. The New York Times already predicts that the nomination kerfuffle could be enough to swing the Senate back to the Democrats since it gives them the perfect ammunition needed to clobber the Republicans as the “party of obstruction.” Obstructing President Obama is popular among the Republican base, however, and this Supreme Court vacancy will undoubtedly mobilize socially conservative evangelicals, who are still stinging from the Court’s pro-gay-marriage ruling last year.

No matter who wins the Senate in November, the coming nine-month vacancy is better for liberals than conservatives. Most of the circuit courts have liberal majorities, whose most important decisions were often overturned by the Supreme Court in 5-4 decisions. Now, those cases could result in tied 4-4 votes, which leave the lower court ruling intact, as if the Supreme Court never heard the case.

Many of my fellow Democrats are celebrating this newfound opportunity to advance liberal values through the judicial system. To be sure, I am thrilled that the vacant seat puts President Obama’s Clean Power Plan on safer footing. We are now one vote away from ridding this country of the death penalty and overturning Citizens United – great news on my side of the aisle.

But over on First Street, no one is celebrating, so neither will I. The Supreme Court is home to nine justices with the peculiar duty to “say what the law is,” earing the jubilation and consternation of 320 million Americans in the process. It does not take a keen legal mind to imagine the camaraderie that must exist in such a pressure cooker.

By all accounts, Scalia was the very model of professional courtesy. When Justice Elena Kagan was first appointed to the court, Scalia wasted no time asking his new colleague and fellow New Yorker to go duck hunting. She wrote after his death, “I treasured Nino’s friendship: I will always remember, and greatly miss, his warmth, charm, and generosity.” Justice Clarence Thomas also mourned Scalia’s friendship, writing, “It is hard to imagine the Court without my friend. I will miss him beyond all measure.”

While Thomas and Scalia consistently voted together, Ruth Bader Ginsburg was Scalia’s best friend and favorite sparring partner on the Court. Indeed, Scalia’s friendship with Ginsburg has achieved so much fame that the comic opera Scalia/Ginsburg premiered in Virginia last year. The opera marvels at the fact that two judges who disagree on so much could be such good friends. Scalia and Ginsburg have celebrated New Year’s Eve together for years and even took their families on vacation with each other. Their friendship was real, not some forced display of bipartisanship.

With his insistence on interpreting the Constitution as if it were 1787, Scalia was certainly a throwback. But his friendship with Ginsburg demonstrates conservatism of a different sort. Even when Scalia heartily disagreed with his colleagues, he was still able to maintain warm friendships with them based on mutual respect and a fair amount of good-natured ribbing. And he enthusiastically enjoyed these friendships! Such collegiality is quite rare in our politics today, which is a tragedy because cordial debate and competition produce a better product on either side of an argument. In her statement marking Scalia’s passing, Justice Ginsburg noted that Scalia’s counterarguments improved her work. “Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion.”
Although no one could ever match his gumption, Scalia’s colleagues eventually adapted his originalist philosophy to their own ends, and the Court is better for it. Consider Scalia’s magnum opus: his majority opinion in D.C. v. Heller upholding a personal right to bear arms. In a piercing dissent, Justice John Paul Stevens used Scalia’s originalism against him, convincingly arguing that the phrase “to keep and bear arms” was understood at the time of ratification as applying only to members of the militia. To compete with Scalia, Stevens had to elevate his rhetoric to a new level.

At Georgetown’s Philodemic Society, we hold that zealous disagreement and ardent friendship go hand in hand. Scalia, a member during his time as an undergraduate at Georgetown, represented the best of our tradition. With wit like a firecracker and a penchant for metaphor, he took no prisoners. But after the arguments were over, Scalia was quick to acknowledge the intellect of his peers. With the jiggery-pokery of presidential politics dominating the news, I will miss this Hoya.

 
Michael Whelan is a senior in the College.

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2 Comments

  1. A very classy and gracious article. Sadly, two Georgetown Law professors have decided to trash Scalia in a campus-wide email. We should expect better from professors.

  2. Too many people expect the court to be a mini-legislature and unfortunately it sometimes acts that way. Nevertheless, the court has a different function than Congress. Liberals hate Scalia because he did not follow their political inclinations. Most have no idea whether his decisions were legally sound. If the court strikes down an executive order because it is outside the President’s authority, the public should welcome that as a proper recognition of the separation of powers, regardless of the issues involved.

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