We all know about the Supreme Court’s liberal block, conservative wing and influential swing voters. What we hear about less frequently are the friendships.
Antonin Scalia’s closest friend on the court couldn’t be found among like-minded conservatives, or his fellow-Catholic justices. His closest friend was Justice Ruth Bader Ginsburg, his intellectual equal and ideological foe. With Scalia’s sudden passing, it’s important to know this.
Scalia knew you can disagree without losing sight of what binds us. You can debate without becoming acrimonious. You can fiercely differ over the basic tenets of our Constitution, and still sit next to each other and share a laugh over lunch.
Scalia didn’t spare friends or enemies in his opinions. Considered the most engaging, caustic and brilliant writer among the Court’s nine justices, even those who disagreed with virtually everything he wrote read every word – usually with relish. As leader of the court’s conservative majority for three decades, his imprint can be found across American society.
Scalia was a throwback to Justice Hugo Black, perhaps the original originalist, in his belief that justices must decipher the Founding Fathers’ intent then apply that to modern situations. Other justices – such as Ginsburg, Sandra Day O’Connor and William Brennan – believe the Constitution is a “living document” that must evolve as culture evolves.
Deeply conservative, and an ardent defender of free enterprise, his originalist thinking sometimes aligned him with the court’s liberals, such as in 1989 when he voted to protect flag burning as free speech.
In 2013, he wrote the opinion that prevented police from intruding on a home with drug-sniffing dogs without first getting a warrant.
In 2004, Scalia dissented in the case of Yaser Esam Hamdi, a U.S. citizen captured while fighting for the Taliban in Afghanistan. Scalia said the government could not detain a citizen indefinitely; it must prosecute him or free him.
He was not inflexible. In one opinion, he altered a previous position, noting he had “acquired new wisdom … or, to put it more critically, have discarded old ignorance.”
Married with nine children, his faith was as important as his conservatism. He frequently met with law school students who belonged to Catholic organizations, sometimes singing arias from favorite operas.
Nominated by President Ronald Reagan, he was confirmed 98-0 in 1986. Every Senate Democrat voted for him; only Republicans Jake Garn of Utah and Barry Goldwater of Arizona abstained.
If only the nation could be so united in replacing him. His death leaves the court split with four conservatives, three liberals and one swing vote facing some very controversial cases – lawsuits that could unravel the world’s climate change agreement, restrict abortion rights and curb the right of public-employee unions to act in the political arena. If the Supreme Court deadlocks, lower court’s rulings will stand.
Saturday, Senate Republican Leader Mitch McConnell and the Republican presidential candidates said President Barack Obama should ignore his Constitutional duty and not nominate a replacement. They’re wrong. Obama was re-elected in 2012 and should carry out his Constitutional duties until the next president is inaugurated Jan. 20, 2017. Scalia would be the first to acknowledge that.
But before we lapse into another rancorous debate, maybe we could spend a few more moments recalling Scalia’s legacies. Fiery conservative and protector of the Constitution as he viewed it, but also a very close and dear friend to someone with whom he fundamentally disagreed.
Following that example would be of more value to our nation than all his opinions.