Go to the Globe and Mail homepage

Jump to main navigationJump to main content

AdChoices
Laurence H. Tribe is a professor of constitutional law at Harvard Law School. He is a leading advocate in the U.S. Supreme Court and the author of many books on the U.S. Constitution.
Laurence H. Tribe is a professor of constitutional law at Harvard Law School. He is a leading advocate in the U.S. Supreme Court and the author of many books on the U.S. Constitution.

LAURENCE H. TRIBE

Scalia didn’t score the touchdowns. He redefined the playing field Add to ...

Laurence H. Tribe is a professor of constitutional law at Harvard Law School. He is a leading advocate in the U.S. Supreme Court and the author of many books on the U.S. Constitution.

The shock of Justice Antonin Scalia’s untimely death on Feb. 13 hadn’t even begun to wear off before the chorus of praise for his illustrious career as a judge and a legal thinker had emerged with a single and singular voice: Justice Scalia was a transformative jurist, one worthy of great admiration even by those who, like me, often disagreed not only with the votes he ended up casting (on topics as varied as race-based affirmative action, voting rights, abortion, informational privacy, the rights of gay men and lesbians, the separation of church and state, and the reach of congressional power over economic affairs and health care), but also with his methods (what legal scholars call “textualism” in statutory interpretation and the jurisprudence of “originalism” in constitutional interpretation) and his claim to be a fully principled and consistent adherent of those particular modes of interpretation.

But this is neither the time nor the place to rehearse the arguments for and against the bold positions this exceptionally influential justice took on the most contentious social and cultural issues of the day or to debate the reasoning he used to arrive at those positions, more often in colourful dissent than speaking for a court majority.

Suffice it to say that in spite of our disagreements, I invariably found Justice Scalia’s thinking and prodding to be brilliantly generative of important insights into the way law and legal interpretation ought to proceed. Even though I debated the justice repeatedly – both in academic settings, like my response to his Tanner Lectures on Human Values at Princeton University (resulting in his 1997 book, A Matter of Interpretation), and in oral arguments at the Supreme Court, where I appeared before him and his colleagues dozens of times over the course of his 30-year tenure – I never ceased to enjoy the encounters immensely and never failed to benefit hugely from them, even when his inherent advantage left a bittersweet aftertaste. He was, after all, a U.S. Supreme Court justice and wielded a vote on that august tribunal and great influence within it, while I was a mere scholar and advocate.

Interestingly, most of Justice Scalia’s influence took the form of redefining the playing field itself rather than scoring memorable goals or touchdowns. Others have already commented on how frustrated he seems to have been by the fact that he achieved fewer tangible victories in the realm of constitutional law than his years of judicial toil and his towering importance as a judge might have led one to expect. To be sure, Justice Scalia cast significant (and, at crucial times, decisive) votes in favour of the rights of criminal defendants to confront the witnesses against them and to have juries of their peers decide all the facts crucial to their sentencing and convictions. In addition, his was a crucial vote in many closely contested cases about the First Amendment’s Freedom of Speech and Religion clauses. That said, it still surprises many to learn that the Second Amendment rights of private individuals to purchase and carry firearms represented the only area in which the justice’s insistence on channelling the “original public meaning” of the Constitution could be credited with a Supreme Court victory.

Although some scholars described the pair of decisions establishing that “individual rights” reading of the “right to bear arms” as the clearest triumph for Justice Scalia’s originalist methods, the irony is that this context was one in which an arguably stronger “originalist” argument was mounted by the four dissenting justices, who advanced a detailed and carefully evidenced case for the view that the “original” meaning of the provision in question bore not on a private right of individuals to “bear arms,” but rather on a collective right of the state militias to arm themselves against being overpowered by an irresistible national army.

In matters of statutory interpretation, Justice Scalia’s influence is probably more pronounced than it was in the realm of constitutional construction: He taught generations of law students, lawyers and judges to pay close attention to the literal text and structure of enacted laws and to consult legislative history rarely and never decisively, emphasizing that our Constitution sets out the ways in which Congress is to make laws – and that leaving behind a trail of crumbs in floor speeches and committee reports is not among them. It is telling that the court Justice Scalia leaves behind contains very few justices who fail to give legislative text the kind of priority that Jutice Scalia insisted was its due. Yet there again, in the most contentious and publicly significant cases, including those involving President Barack Obama’s signature domestic achievement, the Affordable Care Act, Justice Scalia failed to take a majority of the court with him to the conclusion he was convinced his methods of interpretation demanded.

While Justice Scalia may not always have been able to sway enough of his fellow justices to his side, his role as charismatic leader of an increasingly dominant school of legal thought in the United States makes it altogether unsurprising (although perhaps unseemly and, in my view, ultimately indefensible) that the U.S. Senate, now in the hands of right-leaning Republicans, is digging in its heels and promising to leave his seat on the court unfilled for well over a year at a uniquely divided time in our politics.

Candidates for the Republican presidential nomination have been quick to assert that Justice Anthony Kennedy's appointment by president Ronald Reagan in 1988 represents the only time in the past 80 years that the U.S. Senate has confirmed a Supreme Court nominee during a presidential election year. That claim is simply made up (there were three such cases in the past 84 years and five in the past century) and ultimately irrelevant: The Constitution clearly obliges the president to nominate a justice to fill this vacancy, and not once since 1900 has an impending presidential election led to the kind of impasse the Senate leadership now threatens.

Republicans may well end up regretting their obstructionist strategy. Their posturing, so reminiscent of the tactics previously used by one or both chambers of Congress to hold the nation hostage to the Republican agenda, could well backfire by helping the Democratic nominee to prevail this November.

It would do a genuine disservice to a great judge’s memory and to the structure of the U.S government for the Senate to treat Justice Scalia’s death as the occasion for just more political posturing.

Report Typo/Error

Follow us on Twitter: @GlobeDebate

Next story

loading

Trending

loading

Most popular videos »

More from The Globe and Mail

Most popular