Tribute to Justice Antonio Scalia of the US Supreme Court
Correspondent | Friday February 19, 2016 14:55
On Saturday, February 13, 2016, the US judiciary, and the entire, nation lost one of the most highly respected justices of the Supreme Court, regarded by many as a fierce intellectual force of the right wing in the Supreme Court. His departure and consequent replacement has sparked fierce debate amongst the conservatives and liberals in that country.
The conservatives have called upon President Obama to refrain from nominating a new justice to replace Justice Scalia for fear that he will replace him with a liberal justice who may tilt the balance of the US Supreme Court jurisprudence – on major constitutional issues – to the left. These forces argue that the tradition in the US is that a lame duck President – a president who is on his way out, should not nominate a new justice in the dying days of his tenure.
However, President Obama is adamant that he intends to fulfill his constitutional obligations.With the departure of Justice Scalia, the US Supreme Court is evenly balanced in terms of ideological outlook. Justice Anthony Kennedy is considered a vacillating justice, who often tours the middle path, and therefore unpredictable. His record shows that in a majority of cases, he votes with the right although on occasions he has voted with the left. If history is anything to go by, the Court is set to continue being divided on major constitutional issues touching on the rights of LGTBQ’s, abortion, affirmative action and immigration laws. Justice Antonio Scalia was born in 1936, in Trenton, New Jersey. He was the only child of Mr. and Mrs. Scalia. His father emigrated from Sicily as a teenager to the United States of America. In 1953, he enrolled at George Town University in Washington DC where he graduated with a bachelor’s degree in History. He is a Harvardian – having graduated at the prestigious Harvard Law School. In 1967, he took up an academic post as Professor of Law at the University of Virginia Law School.
Justice Scalia has also taught law at the University of Chicago Law School. He was appointed to the Supreme Court in 1986 by President Reagan and soon thereafter earned a reputation as a constitutional textualist who believed that the duty of the court in interpreting the Constitution is to give effect to the intention of its framers. This judicial philosophy was called originalism. It is an interpretation method that seeks to hold the Constitution hostage to those departed. This method has no traction with modern constitutional lawyers.
This brought him in confrontation with liberals who believed that the Constitution is a living and breathing organism that allows the courts to interpret it expansively and in a manner that is consistent with the contemporary values of the society.Justice Scalia believed that an expansive and generous interpretation allowed judges the opportunity to legislate and often to be the overlords of the Constitution. He took the view that to regard the Constitution as a living document allowed courts to facilitate change, which is not their duty. He abhorred judicial activism with a passion believing in the fairy tale that judges do not make law, when in actual fact judges are the best lawmakers. He was a firm believer in the doctrine of stare decisis – which meant that the principles derived from previous decisions formed a body of controlling law for future decisions. He derided liberals for striving for ‘justice’ in a case, in the light of their own philosophies and socio economic values and in the process according settled legal principles little or no weight. According to Justice Scalia, judicial power should never be exercised for the purposes of giving effect to the will of the judge, but rather that of the legislature, the primary lawmaker. It is this approach that defined Justice Scalia as a conservative – some would say an ultra-conservative.
It seems to me that judges, like other mortals, need to view complex constitutional issues with a broader compass and a more sharper microscopic lens – and of course with some measure of humility – the conviction that one human mind can embrace but a tiny fraction of all judicial wisdom and knowledge. Conservative to the core, he occasionally veered to the left. He surprised many members of the legal fraternity when he voted to uphold free speech in the Texas flag burning case.
He acknowledged the discomfort in seeing the flag burnt, but could not fathom those who wanted to punish the flag burners. He recognised that the ability to speak one’s mind, to challenge authority without fear of recrimination by the State is the essential distinction between life in a free country and in a dictatorship. He understood that although the flag was a fundamental symbol of American nationhood, a proper constitutional reasoning requires the courts to make decisions they do not necessarily like, but that must be taken because they are right – and that to this extent, it is imperative that the flag protects those who hold it in contempt. Justice Scalia weighed in his conservative views in the case of Bush v Gove and literally helped hand over the 2,000 election victory to President George Bush. Many constitutional scholars have criticised the decision as wrongly decided. In the dissenting judgement of Justice Stevens, with whom Justice Ginsburg and Justice Breyer agreed with, the majority decision, in essence discredited the independence and impartiality of the judiciary.
He concluded that: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In June 2015, when the Supreme Court upheld the Obama care, Scalia, was scathing against the majority decision which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance, accusing the majority of twisting the meaning of plain words, saying in the course of his dissent: “the court’s decisions reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct supposed flaw in statutory machinery. That philosophy ignores the American people’s decision to give Congress all legislative powers enumerated in the Constitution.”Justice Scalia was equally scathing in his dissent in the 2015 landmark case in which the Supreme Court upheld the right to same sex marriage by a majority of one. He came hard on the majority decision, writing that the ruling was “at odds not only with the Constitution, but with the principles upon which our nation was built”.Over the many years of his extra-ordinary judicial career, Justice Scalia was the very epitome of conservatism. Some traces of this can be discerned from his upbringing, for the truth is that no judge ascends to the bench as an ideological virgin, sometimes personal and professional experiences may influence the colour and texture of one’s jurisprudence.
The tragedy though of conservative/liberal contestation over what the task of judging entails is often characterised by self-serving criticism; the right accusing the left of judicial activism – shaping the law in accordance with the judges socio-economic views or philosophy; whilst history would testify that conservative elements, just like liberals, may occasion violence to plain words to give effect to their world outlook.
The truth of the matter though is that in each of us, judges, there is a stream of tendency; call it philosophy for lack of better word, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other ordinary mortals.
*Hon Justice Prof OBK Dingake is a High Court Judge