The law's greatest advocate

By Steven Martinovich
web posted January 24, 2005

Since being appointed to the United States Supreme Court in 1986, Justice Antonin Scalia has earned a reputation as the court's arch-conservative and perhaps most passionate members. Respected by liberals and conservatives alike, Scalia's written opinions -- whether concurring or dissenting with the rest of the court -- have become required reading thanks to his insight, humor and occasionally biting commentary. Those opinions are sometimes prescient, often provocative and always perceptive.

Attorney and former counsel to a Senate Judiciary subcommittee Kevin A. Ring, a self-described expert on Scalia, has collected some of the justice's most famous and interesting opinions for Scalia Dissents: Writings of the Supreme Court's Wittiest, Most Outspoken Justice. Although most would raise their eyebrows at the notion of reading Supreme Court opinions for entertainment as well as insight, Scalia Dissents proves that both are possible. As Scalia Dissents illustrates, Scalia not only knows what to say, he knows how to say it.

The controversy that surrounds Scalia is the manner in which he interprets the U.S. Constitution. Declaring once famously that he defended a "dead Constitution," Scalia believes that the document says what it says, no less, no more. Rights only exist if expressly stated in the Constitution or, if the document isn't clear, if there is extensive textual and historical support. It's a complicated approach -- Scalia has admitted that much himself -- but, he argues, it allows judges to avoid injecting their personal feelings into the process, or to put it another way, to avoid making policy by judicial fiat in favor of allowing the people's representatives to vote on issues.

"Known as textualism, Scalia's methodology first direct judges to focus on the words of a statute or regulation. Unlike some conservative judges, Scalia says texts should not be construed 'strictly.' Nor should they be construed 'liberally.' Rather, Scalia says, words should be interpreted reasonably, that is words, should be accorded the ordinary meaning that would have made sense to Congress (or state legislature) that passed the law and to the people who would have been subjected to it. At the same time, Congress should ensure the meaning makes sense within the context of the law or code of which it is a part. Where the meaning of a statute is not immediately clear, Scalia relies on some tools to find the right meaning. He often consults dictionaries from the period in which the law was passed. He will look to see if words are used elsewhere in the statute and, if so, will give them the same meaning."

Scalia's methodology can be clearly seen in his rulings on abortion. While the rest of the court employs often bizarre reasoning to support their pro-abortion rulings -- including repeatedly abandoning then reviving portions of their own previous rulings -- Scalia has never wavered from the belief that Roe v. Wade was bad constitutional law, a position that many pro-abortion activists are acknowledging today. Scalia believes that far from settling the state-level issue, Roe merely federalized the matter and made the debate more rancorous. Succeeding cases built on Roe have created an increasingly unstable structure that relies more on personal opinion than constitutional law to sustain it, argues Scalia.

His opponents argue that Scalia is indeed consistent, but only in terms of his conservative politics, a charge that doesn't stand up to scrutiny in Scalia Dissents. Although Scalia defends a "dead document", a point of view best associated with conservatives, that doesn't mean that his opinions are always greeted happily by the right. He has voted to strike down legislation such as the Flag Protection Act of 1989 on the grounds that it infringed upon the First Amendment and against the notion of "parental rights" in Troxel v. Granville (2000), arguing that there was no basis in the constitution for those rights.

As can be seen in his opinions, Scalia believes that if the Constitution is silent on an issue, such as same-sex marriage or abortion, it is up to Americans using democratic means to decide how to proceed. Ring argues in an epilogue that if all the justices followed Scalia's methodology, the United States would be a freer nation today. "Freedom would be enhanced as the courts stood firm for protection of the basic liberties enumerated in the Bill of Rights ... All fundamental freedoms would be guaranteed by a vibrant federal government whose power was divided and balanced among three distinct branches ... America would be reborn as a nation of laws and not of men."

Scalia Dissents would have been better served had Ring actually included the opinions he refers to that rankle conservatives, if only to create a more balanced picture of Scalia. That aside, Ring has put together an entertaining collection that goes far in spotlighting the brilliant mind behind the memorable opinions. Hopefully Scalia Dissents serves a higher purpose and prompts his critics to actually read his opinions and learn their basis. It would likely create a few more fans for Scalia on both sides of the political divide.

Steven Martinovich is a freelance writer in Sudbury, Ontario, Canada.

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