This past weekend brought news both feared and unexpected by devout Catholics, pro-life activists, and conservative public policy advocates. Justice Antonin Scalia, one of the finest jurists in the history of the Republic, had passed away peacefully in his sleep.
With the passing of this great champion of life and liberty, many also fear the closing of a historic window of opportunity in which American government might be restored to operation within its constitutional constraints. On reflection, however, those who opposed Justice Scalia have much more to fear than those of us who mourn his loss. But before we ponder the impact of this great man’s death, let us first credit what he achieved in life.
To properly assess the enormous impact of this good judge, let us first consider the fruits he produced—that by which Scripture instructs we shall all be judged. “Nino” Scalia was blessed with a long and happy marriage, nine children, and at last count some 36 grandchildren. By this measure alone, if he had done nothing else with his life but raised his family in the faith, it would be impossible to judge his life a fruitless one.
And yet Justice Scalia did not bury his talent in the ground. His specific talent was to champion life and liberty at the highest level of jurisprudence. He understood that although judges are sometimes necessary to protect the life and liberty of some, our constitutional republic was premised on judges remaining constrained to the role of interpreters, not makers, of law. Thus, he was a tireless and leading advocate of constitutional textualism and originalism. By this seemingly common sense approach to jurisprudence, judges recognize that laws are composed of words, that these words have meaning, and that for the rule of law to be meaningful, the meanings of the words must be largely knowable by their traditional understanding and within the structure and context of the document in question.
Much to the chagrin of his enemies (and even, at times, to the consternation of friends and allies), Justice Scalia believed neither he, nor any appellate judge in a constitutional republic, enjoyed the authority to legislate from the bench. To the extent a republic adopts a written constitution and relies on written statutes, he emphasizes, it departs from the model of a common law judge. Thus, in a constitutional republic, judges lack the authority to render their personal judgments as to what the law should be regardless of what the law states. Judges lack authority to rely upon natural law and the teachings of the Church, and they equally lack authority to rely upon the whims of modern sensibilities or “politically correct” opinions.
Justice Scalia was a constant thorn in the backsides of anyone who argued that the meaning of a statute, or of the Constitution itself, could change merely by the passage of time itself, without the verdict of an electorate or the elected. But no measure of the man could be adequate without due recognition of his talent for argument.
And what talent he had. Justice Scalia’s compelling arguments and wit recalled another great Catholic contributor to American civil discourse, Fr. Richard John Neuhaus, founder of the journal First Things. Just as fans of the good priest found themselves picking up a new issue and turning first to the back pages for Neuhaus’ column, “On the Square,” Scalia’s brilliant and entertaining arguments led us deep into the Supreme Court’s slip opinions before duty required us to read what his colleagues wrote.
More often than not, of course, we had to go far too deep into the slip opinion, because too few of Justice Scalia’s colleagues were open to persuasion. Had more of his colleagues accepted his arguments on judicial authority, he would have written many more majority opinions rather than brilliant dissents.
In some of the cocktail party circles of the Enlightened, the role of dissenter is deemed a dark mark on the career of an otherwise brilliant jurist. Justice Scalia insisted, however, that it was not his job to persuade those colleagues on the bench who had their minds made up. Rather, he was bent on obtaining the correct interpretation of the law. And if this approach—planted in the hearts and minds of tens of thousands of law students and attorneys and judges who he inspired—were the only fruits of Justice Scalia’s professional life, they would nonetheless constitute a bountiful harvest to be reaped for generations to come.
We have considered, then, the tremendous impact of this great jurist’s life. How easy it would be to assume the greatest effect of his death will be the loss of a champion for life and liberty. Certainly, it is fitting that even in death this famously combative pugilist of the pen has provoked a political firestorm. The battle to appoint a jurist to fill the vacancy on the high court may become the single biggest issue in this presidential election year (Ironically, if more of Justice Scalia’s colleagues had been more open to persuasion on the constitutional limits placed upon government, the stakes would not be nearly so high). But these are only the most immediate and by no means the greatest or most profound effects of his death.
As a devout Catholic, Justice Scalia would have agreed, and no doubt understands more profoundly than ever, that his work on our behalf is not finished. If it is the will of God, the good judge can continue his work through intercessory prayer on our behalf. We should not forget that whether Justice Scalia is in Heaven already (a point we must not take for granted), his prayers are ours for the asking. Catholic tradition tells us that for this to be so one need not believe that Scalia is already a saint, much less one on par with his hero and patron of lawyers, Thomas More. But while we pray that he will receive his eternal reward, we would do well also to ask for his intercession in the fight for life and family. In dying, Justice Scalia may yet become an advocate more formidable even than he had been when he walked among us.
Only by the grace of God will the likes of Justice Scalia benefit and help preserve this Republic. Let us pray for this good man and this great judge, that his soul may rest in peace, but that his great work on behalf of life and liberty will continue unabated.