The Great Scalia
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
The death of Antonin Scalia is a sad day for all who cherish the Constitution — and all the more so because death has taken the 103rd justice at a time when our country is in the midst of what we like to call a constitutional moment. By that we mean a political crisis so deep that nearly every major issue is being brought before the Supreme Court to be examined on the bedrock of the written constitution. How Scalia will be missed.
We first encountered The Great Scalia — as the New York Sun’s stylebook permits him to be called in news dispatches as well as opinion pieces — here at an annual dinner of the Agudath Israel of America. It’s always a dramatic setting, because the tables in the vast ballroom of the New York Hilton are arrayed before a four-level dais seating one hundred or more of the world’s greatest rabbis, dressed in black and wearing long beards.
There, on the evening in question, was TGS, seated between the Novominsker Rebbe, Yaakov Perlow, chairman of the Council of Torah Sages, and the Honorable Raymond Kelly. The justice proceeded to deliver remarks on one of the most important themes from his long years on the bench — the notion that the Constitution had never been intended by the Founders to exclude religion from the public square.
Scalia also offered that evening a particularly memorable insight into his view of judging. He gained it from one of his teachers at Xavier high school, which he attended here in Manhattan. He did a marvelous imitation of the Boston accent of his teacher, Father Murray, explaining that when one studied Shakespeare, it wasn’t the Bard who was on trial — it was the students.
No doubt Scalia felt similarly about the Founders. He had a genuine humility. (He once wrote that advising Attorney General Edward Levi on the law, which he did in the Justice Department, was “rather like being musical adviser to Mozart.”) At dinner with the editors of the Sun in 2008, Scalia said he had an easier task than his liberal colleagues because he could just lay the question at hand next to the plain text of the Constitution.
We saw that in one of his most famous opinions, incorporating the Second Amendment against the District of Columbia’s attempt to outlaw owning a gun. Scalia noted that the court was aware of the problem of handgun violence and said it took seriously the concerns of the many who’d filed briefs in favor of prohibiting gun ownership. He said the District had at least some room to regulate guns.
“But the enshrinement of constitutional rights,” Scalia wrote, “necessarily takes certain policy choices off the table.” He noted that some reckon the Second Amendment is “outmoded in a society where our standing army is the pride of our Nation” and where police are well-trained and gun violence is a serious problem.” That may be “debatable,” he wrote, “but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
One of Scalia’s greatest opinions was his dissent in Morrison v. Olson, in which he argued that an independent prosecutor was unconstitutional because of its very independence. He warned that an unaccountable pursuer could affect the very “boldness of the president.” Years later, when President Clinton was being pursued by a special counsel, our operatives in Afghanistan had Osama bin Laden in their gun-sights but couldn’t get authorization to act because the president’s aides felt Mr. Clinton was too distracted.
It was one of the features of Scalia’s outsized personality that his own boldness was unaffected by all the controversy surrounding him. He was as principled at the time of his death as he was at the time he was confirmed by a Senate on a vote of 98 to zero. His death throws into greater jeopardy the ability of religious Americans to take shelter under the First Amendment from the vast effort to restrict their religious free exercise in the era of Obamacare and same-sex marriage.
Now a great battle will begin over the next justice. Already Republican leaders of the Senate they control are calling for the nomination to be delayed until the next president. That strikes us as unwise, even for those of us who loved Scalia and agreed with him on many issues. He would have understood that the ultimate check on power in this country is the people who, to use the phrase of the Preamble, ordained and established the Constitution and who will make the most important decisions on how to make our Union more perfect.