IF YOU were bold enough to ask Antonin Scalia questions, you had to be precise. Otherwise the bushy black brows would furrow, the chin would crumple and the pudgy, puckish body would start to rock, eager to get at you. Wasn’t he violently opposed to Roe v Wade, the abortion ruling? “Adamantly opposed, that’s better.” Did he have any guilty pleasures? “How can it be pleasurable, if it’s guilty?” Lesser lawyers who were vague in oral argument faced a barrage of sarcasm or, if he agreed with them, constant chiding to do better. (“That’s your strong point!”) Dissenting colleagues at the Supreme Court had their opinions described as “argle-bargle”, “jiggery pokery” and “pure applesauce”.
Words had meaning. He revered them and used them scrupulously, even in insult. The law was written in words, and those ideally laid down bright lines for everyone to follow. As a committed textualist, he wasted no time looking to legislative history, the purported purpose of a law or the comments of some egregious congressman. It meant what it said.
As for America’s constitution, speaking as the court’s originalist-in-chief, all that mattered was what its words meant when it was framed. He was in love with it; he was in awe of the men who wrote it; the late 18th century was a time when genius burst forth on the eastern seaboard, as it had in Periclean Athens. But for him the founding document was not “living”, not some organism endlessly adaptable to society, as Justice William Brennan, a distressingly liberal predecessor, used to think. It couldn’t be found suddenly to contain newfangled “rights” to privacy, as in Roe. It was dead! Dead! (Or perhaps, to be more tender and precise, “enduring”.) Its business was to block change, not advance it, and if it thereby obstructed something he himself, as a very conservative fellow, disliked, so much the better. Death-penalty cases he dismissed in minutes: the penalty was clearly constitutional. Church-and-state cases took no longer: the Framers had built no wall between them, and anyway, didn’t government get its authority from God? He would go home, to a Martini and a large dinner, and sleep like a baby.
The beloved document, however, never promised perfect outcomes. In 1989 he found himself ruling (joining Brennan!) that it didn’t stop sandal-wearing bearded weirdos burning the American flag. (Personally, he would have clapped them all in jail; he longed to mark his opinion loudly with a rubber stamp, “Stupid but Constitutional!”) In several cases the constitution enhanced, rather than curbed, the rights of criminal defendants and terrorists. He did what he had to do. This made him a less predictable justice than many supposed.
More often, the document said nothing at all about some modern obsession: torture, abortion, discrimination. But then such matters, as Justice Scalia kept saying, were never meant to be settled by an unelected committee of nine; they were meant to be resolved by the people, through legislation. If he were a king, as his swagger and opera-singing occasionally suggested, he would stretch the constitution any way he wanted. In fact, as he admitted with a grin, it handcuffed him.
Not nearly enough, some people thought. His colleagues quailed when, in 1986, he first sat on the court as a brash 50-year-old whose experience had been mostly as a combative government lawyer: a justice who, in that sanctum of columns and deep judicial silence, was suddenly firing questions like grapeshot. (As the product of a Jesuit military academy, as well as an originalist, he loved to evoke cannon and muskets, and much enjoyed duck-shooting; he talked of tracking truth like a hunter in the forest, and was pleased to rule, inDistrict of Columbia v Heller, that the Second Amendment did indeed mean that individuals had the right to bear handguns.) Though he was not the only New Yorker on the bench, he was the only spoiled-rotten Italian kid brought up proud and scrapping in Queens and familiar with rude Sicilian gestures. “Come right back at you!” was his motto, robed or not.
Family-fond (nine children!), gregarious and funny, he got on with his colleagues, and made a surprising best buddy of the court’s chief liberal, Ruth Bader Ginsburg. But he spared no ammunition in dissent. As early as 2003, when Lawrence v Texas struck down sodomy laws, the majority had “signed on to the…homosexual agenda”. In 2015, when the court narrowly saved Obamacare, “We should [call] this law SCOTUScare.” He never tried for consensus, not rating it anyway, and increasingly sat with the minority, though always the most colourful and quotable.
Facing down the Devil
He spent three decades on the court, relishing every minute, and liking it even better when he could kick shins in public. Looking back, what pleased him most was to see more attention paid to text, legislative precedent sliding out, and far more questions from the bench: all his doing. He could detect, though, no fading of the fashion to force the constitution ever further into modern life. After abortion and same-sex marriage, why not assisted dying? The stalwart Catholic in him was revolted at the thought. He knew for certain, though, that the Framers were on his side; the Devil was on the other; and that heaven was his portion, for he was always right.