This summer, as Obergefell
v. Hodges flooded social media with rainbows and kissing gays, it also
became the first US Supreme Court decision I have ever looked at [1]. In
this otherwise (expectedly) dull piece of legal opinion couched in forbidding
jargons and headache-inducing (and eye-rolling) abstraction, that of some ‘SCALIA,
J., dissenting’ caught my eyes with colloquial ‘huh?’, ‘really?’ and ‘whatever
that means’[2]. Immersed
in the studies of the English law for the past 2 years, I found the adoption of
these phrases amusingly refreshing.
Hours of Youtube clips later, I learned that this American
judge is truly a curiosity. A ‘conservative maverick’ may sound like an
oxymoron in the UK, but it aptly describes Justice Antonin Scalia[3].
As the most conservative member of the bench, he is also the most polarizing. Many
fear that his reactionary jurisprudence will return America to the dark ages.
His fundamental philosophy is simple. Judges are to decide what the law means, not to (re-)write it. The British, as I recall from my public law studies, call it 'the declaratory theory of law'. As an 'originalist', he believes that the Constitution means the same thing today as it did when it was written in the summer of 1787. As he quipped vividly, there is no living Constitution, but a dead one, much to the amusement of the young audience during a speech at Oxford.
He wrote a book [4] on statutory interpretation of the 'textualism' breed which dictates that judges should not distort the meanings of the text of
the Constitution that the Founding Fathers could not have intended. This,
according to Scalia, WAS orthodox until some professors came along and poisoned
judges' minds with the seductive idea that the US Constitution is a living one and "changes from decade to decade to comport with the evolving standards of decency that mark the progress of a maturing society". "Like societies will only mature," Scalia indignantly said, "not rot!" The audience again lost it.
As he put it in Obergefell
v. Hodges:
“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”
Again, only in America would a conservative judge faithful
to the original text of the law be the odd man out, rather than the norm.
Scalia, in his signature wrath, claims that 9 judges effectively rewriting the Constitution
is dictatorlike, as he opened his opinion with:
“I write separately to call attention to this Court’s threat to American democracy.”
The coherence of his reasoning I am not in a position to
comment upon. Yet, some anecdotes are interesting. During the Q&A session
at one of Scalia’s non-judicial speeches, a member of the
audience questioned that, if textualism should be followed, then "We the People" in the opening words of the US Constitution would never include
African Americans or women. How would you lawyer this absurdity away?
Scalia equivocated by talking (eloquently) about something
else.
Another asked, if the judges are ill equipped for
decisions which should have been left to the people, why not hold a referendum
every time such a decision is called for?
Scalia said he didn't understand this question. Next please.
Finally, the always charming Scalia was at his weakest when
he sheepishly admitted that it is no easy feat for people to change the
Constitution. It would take only 3% of electorate to veto any such
attempt.
I have no doubt about Scalia’s sincerity. But sometimes I
imagine Scalia lying awake in his bed late at night, with his beloved wife of 50
years in sound sleep beside him, ever harbors ANY second thoughts about his
judicial philosophy. Even once? Maybe? When someone like Scalia spends their
entire life espousing a cause, I guess, there will never be turning back.
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