Posted February 15, 2016

February 15, 2016

Death is always a defeat and a liberation: a defeat for human pride; but for the friends of God, a liberation to eternal life.  Supreme Court Justice Antonin Scalia died on February 13.  He was a man of extraordinary legal genius and fidelity to the Constitution.  What irritated his critics most about Justice Scalia was the fact that he was invariably smarter than they were — and worse, he had a sense of humor about it.  But his intellect and patriotism were the lesser part of the man.  The larger part was his enduring Christian character.  His life as a husband, father, friend, scholar and judge was shaped profoundly by his Catholic faith.  What made him “great” in the only way that finally matters was his moral integrity.

To say that I knew Justice Scalia well would be misleading.  But I did have the privilege of private conversations and dinners with him on several friendly occasions, and – not uncommon for Scalia – our contact began with a disagreement in 2002 (see http://www.firstthings.com/article/2002/05/gods-justice-and-ours and http://www.firstthings.com/article/2002/10/antonin-scalia-and-his-critics-the-church-the-courts-and-the-death-penalty).  Justice Scalia was a formidable defender of the death penalty’s constitutionality.  While our thoughts on the matter of capital punishment clearly differed, that didn’t preclude his interest in, or respect for, other points of view.  He had little patience with self-inflicted foolishness, but he was always a gentleman to the core.

In his articulate dissent from last year’s Obergefell decision legalizing same-sex “marriage,” Scalia wrote:

“[It] is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

“This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’  A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Scalia’s words are worth reading and rereading as we ready ourselves for national elections this fall.  The next president will almost certainly appoint more than one Supreme Court justice, and perhaps several.  And those choices will shape the interpretation of American law for decades.  We live at a pivotal time, and we’ve lost one of the Court’s most impressive members.

Justice Antonin Scalia served the people of the United States and their Supreme Court in an exemplary way for nearly 30 years.  He wrote with exceptional clarity, substance and foresight, and he’ll be remembered as one of the great jurists of the past century.  His loss, especially at this sensitive time for the nation, is a tragedy – a tragedy for us.  But for a man of faith, there is no tragedy; in the death of a good man, real life is just beginning.  So may God receive him into eternal joy, comfort his family and send us a jurist of similar character and ability to carry on his work.