Scalia's defining moment: Stephen Henderson
The late justice's wit and intellect were overshadowed by his cramped view of liberty.
No one’s life can be reduced, fairly, to a single moment, act or incident.
But there was one moment in Supreme Court Justice Antonin Scalia’s career that stands out more to me than any other, and it’s not a good one.
In 2003, when the court ruled that sodomy laws — long used to persecute gay Americans — were unconstitutional, Scalia penned one of the most fiery and petulant dissents in court history. It turned, rather cruelly, on the notion that gay equality could not be lawfully embraced by the court because the founders had not envisioned it, and the people had not voted to make it so.
The court, he said, had signed on to the “homosexual agenda” aimed at overturning the “moral opprobrium attached to homosexual conduct.”
That happened at the end of my first term covering the high court. Like many others, I sat in the courtroom, listening in disbelief and disgust as Scalia angrily read his dissent. In the four subsequent court terms I spent in Washington, I never again looked at him, listened to him thunder in court, or read his decisions without that day in my mind.
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Gay rights? Only if the majority wishes. Affirmative action? For Scalia, it wasn’t a tool for realizing the promise of racial equality, but rather a means of discriminating against the majority. Sexual privacy? Not mentioned in the Constitution, so it didn't exist.
(Of course, Scalia had no problem finding, for the first time in more than 100 years in the 2008 Heller ruling, that the Constitution embraces an individual right to bear arms, completely separate from the militia so clearly mentioned in the Second Amendment.)
Those notions sit quite close to the center of the “originalist” or “constructionist” view of the Constitution that Scalia and other conservative appointees since Reagan have aggressively tried to ply throughout American law.
And far beyond the court, those ideas helped shape generations of conservative thought — a movement whose tentacles reach deep into many lower federal courts and into the legal academy, as well as into the ranks of right-wing pundits, commentators and candidates for political office. Where do the extreme ideas we’re hearing in the current Republican presidential primary come from? Scalia is a requisite legal hero to anyone who’d hope to carry the GOP banner in November.
Their view — of America, of our Constitution — has also been at the center of a furious debate for many years, if not decades.
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This is what the fights over Supreme Court seats ultimately boil down to — competing visions of what America is, and what it can be.
In truth, Scalia and his compatriots had already begun to witness significant erosion of their dominance on the court.
The center of the court — comprised by Justice Anthony Kennedy and, sometimes, by Chief Justice John Roberts — has swung liberal on a number of important fronts. The legalization of gay marriage last year — predicted, darkly and angrily by Scalia in his 2003 dissent in the sodomy case — was a major blow to Scalia and other conservatives. So was the ruling, just last month, that will grant new trials to juvenile offenders sentenced to now-unconstitutional automatic life sentences.
With Scalia gone, the fight will be about whether we go further in that direction. Republicans already crowing about blocking a nominee President Barack Obama has not even named — their fear is the slipping away of the majority Scalia and other conservatives hoped to build on the court.
Scalia’s life is about far more than any of this, of course. And the next few weeks will be about remembering him in totality, and recognizing the loss to his family, the exit of his intellect and wit from the debates about the law.
But the fight to replace him, already begun in the forums that shape our body politic, will be all about the restrictive vision of American liberty he articulated time and again on the court.
Stephen Henderson, a former Supreme Court reporter, is editorial page editor of the Detroit Free Press, where this column first appeared.
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