Antonin Scalia left us wisdom in dissent
Justice Antonin Scalia’s death looks likely to set off partisan fireworks, with Senate Majority Leader Mitch McConnell saying that Scalia’s seat should be filled not by the lame-duck Barack Obama but by the next president.
It wouldn’t be the first time this happened.
In 1968, Republicans filibustered Abe Fortas, President Lyndon Johnson’s pick for chief justice to replace Earl Warren, until after the election, allowing Richard Nixon to choose Warren’s successor. And the GOP was in the minority then.
As Josh Blackman notes, only once in the 20th century was a justice nominated by a president of one party confirmed by a Senate of the other party in an election year.
One might think that all this politicking in the wake of a great jurist’s death would be unseemly, but in Scalia’s case, I think it is perhaps fitting. It was a characteristic of his jurisprudence that he favored clear rules for running the government, but that he believed the Constitution should leave as many substantive decisions as possible to politics and the elected branches.
That’s a point I stress in teaching two leading cases in my Constitutional Law classes, where I agree with the majority but find Scalia’s dissents worthy of special attention.
In Lawrence v. Texas, the court reversed its relatively recent decision in Bowers v. Hardwick and found that laws against homosexual sex violate the Constitution. Scalia observed: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”
Though I think laws regulating sexual behavior that doesn’t harm anyone are beyond the legitimate power of a democratic government, his point is an important one. Judges have to give reasons for what they do, and those reasons get built on in future cases. Legislators do not and can stop wherever it suits them — unless judges get involved.
In U.S. v. Virginia, which overturned single-sex education at the Virginia Military Institute, Scalia wrote: “The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”
Every year, that passage has seemed more relevant to me, perhaps because we live in an age in which those “smug assurances” seem especially smug.
As we remember Justice Scalia’s time, let us remember that every age’s smug certainties come to an end eventually, and that the dissents of Supreme Court justices often turn out to be prophetic.
Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY’s Board of Contributors.