Why Scalia Matters

Another major decision by the court and another day of low hanging Scalia jokes to be picked from the tree of justice. No jurist in modern history has taken the brunt of criticism and media scorn than Justice Antonin Scalia. Even among the legal profession the Great Dissenter often draws groans and quips, especially among tired law students who finish a lengthy Supreme Court case only to find they have a 15 page Scalia dissent waiting for them at the end. To the left, no justice is more hated especially by Twitter and tumblr liberals who jump on his corny old man jokes and legal quips before labeling him and outdated bigot and moving on to the next news item to analyze. Indeed, the only thing more prevalent on Twitter this morning than rainbow colored corporate logos trying to cash in on same sex marriage were pictures of Grandpa Simpson yelling at the cloud labeled “Scalia’s dissent.”

Even amongst the right his presence on the court is polarizing. Many moderates who want conservatism to be taken more seriously by the general public roll their eyes when a Scalia dissent appears and reads like something from the 1840’s. The far right generally praises him for his strict interpretation ideology and social conservatism. To many Scalia is in the modern conservative Pantheon alongside Ted Cruz, Mike Huckabee, and the Robertson family, raining legal lightning bolts down from Mt. Reagan on those who would dare change American culture from its traditional, judeo-Christian, suburban, middle class roots.

The thing is, Scalia isn’t a joke. I don’t mean that because anyone who sits on the Supreme Court should not be taken as a joke. I mean that in Scalia is a good presence for all Americans. Interpreting the Constitution should not be easy and whether people like it or not there were many delegates to the constitutional convention who were very conservative. Virginian founding father Patrick Henry (he of “give me liberty or give me death” fame) was so conservative he refused to attend the convention thinking it to be a liberal plot to destroy states rights. Throughout American history much of the population has been conservative and they expect the living document that is the Constitution to represent them as much as any other American. Such a conservative interpretation and outlook should have a voice on the highest court. That’s just the essence of democracy.

In addition, a conservative counterweight like Scalia keeps the court honest. His presence and the presence of many previous conservative justices is but another one of the checks and balances built into our system. A conservative voice in the back chambers of the court keeps the liberal justices honest and adds diversity of opinion, even if social media liberals think such an opinion is wrong. Diversity is a good thing because the plurality of ideas, concepts, opinions, and knowledge strengthens the finished product. This is what fuels innovation and advances ideas, philosophies, and other works.

While Scalia dissents and carries the torch of strict conservatism he does not block himself off from people of other ideologies as so many Americans now do. His friendship with leftist justice Ruth Bader Ginsburg is well known and his clout among the conservatives and liberals of the court is considerable. His dislike of legislative history has rubbed off on the court as a whole and opinions using such history as critical reasoning are virtually nonexistent these days. He advocates his opinions to his colleagues and they usually take it into consideration, even liberal opinion writers.

This is a good thing.

This country is at its best when liberals and conservatives work together in order to muster the resources necessary to accomplish the impossible. We are at our worst when the two sides treat each other as an enemy to be conquered. Our best presidents and leaders inspire the general public and manage the left and right’s fringe. This was true for George Washington who was beloved by almost every American but who also managed the fledling Congress and Constitutional Convention. There were crazies back then too with conservatives who wished to crown Washington king and entrench a new American aristocracy while liberals saw Washington and his Virginia planter friends as aristocrats and the new constitution as stabbing the revolution in its infancy.

Scalia does not compromise his ideology to win swing votes or take partial victories but he is not a closed off wall of conservative thought and intellect. This initially did lower his influence by alienating older judges like Sandra Day O’Connor and Harry Blackmun but the additions of conservative Chief Justice Roberts and Justice Alito have boosted his influence. Regardless of who is on the court his presence acts as a counter balance anchoring the conservative side while his arguments and opinions permeate the court and provide needed influence and diversity of thought necessary to craft the opinions that help answer our biggest societal questions. Justice John Paul Stevens once states that Scalia is committed and some of his impact has made a huge difference while at the same time some of it was unfortunate.

This says nothing of his influence beyond the court. His bombastic opinions and especially his dissents are often purposely written to fomet discussion beyond the court. More than his votes, his history of colorful opinions has helped shape his public perception and influence but also spurred national conversations about what was coming out of the court where such discussion had not existed before. A national interest in the court is a good thing no different than national interest in the other branches of government.

Even today with the landmark 5-4 ruling in favor of same-sex marriage Scalia’s dissent was passed around as “conservative tears” by social media liberals. Pushing past the passion of what you wanted to see versus what you got from the man, one can see some stark and interesting warnings from the great dissenter. Namely his dissent warns agains judicial activism and using the courts to trump laws drafted by the will of the people. That is hardly a warning to be made fun of. Yes, today many Americans got exactly what they wanted and had been fighting for for so long from the high court but our legal system builds on itself. Today’s victory could be tomorrow’s defeat and the court could rule against something that the majority of Americans believe in. It might require more patience and political fighting but achieving the same sex marriage victory or any other policy victory in legislatures and in state constitutions will always provide a firmer foundation than the will of several highly educated elite justices. “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation; no social transformation without representation.” It is important to remember that the court is a check on the legislature, not the legislature itself. That argument should stand regardless of ones politics and while people can celebrate today they must take it with a grain of salt. A narrow majority won today in the courts and not through the voting booth. In Scalia’s and many others opinions victory through the people trumps victory through judges.

Some might disagree with him on everything and some might agree with him to a fault but no one can deny the benefits and weight his presence brings to the court and the totality of his influence.

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