The 'Good Judge'
Antonin Scalia's two decades on the Supreme Court.
Nov 13, 2006, Vol. 12, No. 09 • By TERRY EASTLAND
During this time of conservative angst, of worry about what conservatism stands for and means, why not consider the contribution to the country of someone who is not a politician but a judge--actually a justice of the Supreme Court--appointed by President Reagan back when things were good (or at least so memory tells us)? Antonin Scalia is this man. This past summer he con cluded his 20th term on the Court, a milestone reached by only 36 of our 109 justices. Among current justices, only John Paul Stevens, appointed in 1975, has served longer. Scalia, 70 and in good health, may well join the handful of justices (including Stevens, 86) whose High Court tenures lasted at least three decades.
Born the only child of Eugene and Catherine Scalia in Trenton, N.J., and raised in New York City, Scalia went to St. Francis Xavier, a military prep school, and then to Georgetown University, where he finished first in his class. At Harvard Law, he was note editor of the school's law review. Graduating magna cum laude in 1960, he worked in a top-tier law firm, taught at the University of Virginia law school, and served in the Ford Justice Department as assistant attorney general in charge of the Office of Legal Counsel, where some of the department's finest lawyers work. After that he spent five years on the faculty of the University of Chicago law school while also editing Regulation magazine.
During the Reagan presidency, Scalia was an obvious choice for a seat on an appeals court, and in 1982 Reagan named him to the U.S. Court of Appeals for the District of Columbia Circuit. Seemingly, there was only one more place Scalia could go, and that was several blocks up the street to the Supreme Court, where Reagan sent him in 1986. He was confirmed by the Senate 98-0, fittingly, on Constitution Day, September 17.
Scalia is deservedly held in high regard for his intellect and wit and writing ability. He compares favorably with two of the Court's greatest stylists, Oliver Wendell Holmes and Robert Jackson. Of his 635 opinions so far, a large number--beginning with his solitary dissent in the 1988 case sustaining the independent counsel statute, Morrison v. Olson, a dissent already vindicated by the passage of time--will be taught in law schools many decades hence. Scalia's opinions are essential in evaluating his work, to be sure, but to see his unique contribution as a justice, it is necessary to place his arrival at the Court in historical context. Someday it may be said of Scalia that he was the justice who pioneered the effort to put the text back into statutory law, and the Constitution back into constitutional law.
Judges make their appearance in Article III of the Constitution, which vests "the judicial power" in "one Supreme Court" (and in such inferior courts as Congress may ordain and establish). This power extends to "all cases, in law and equity, arising under" the Constitution, federal statutes, and treaties. It is a power that entails interpretation and application of those laws. And it is a power that the Framers understood as limited. Judges, they believed, shouldn't make law, since that authority belongs to the people and is to be exercised through their elected representatives.
More than a century ago, in the hands of the Supreme Court, the judicial power began to undergo a transformation that was well advanced by the time Scalia was in elementary school. In the 1986 book tracing the evolution of the judicial power, published just as Scalia joined the Supreme Court, political scientist Christopher Wolfe described the emergence of "judge-made law," which, against the hopes of the Framers, had become "another variant of legislative power."
The growth of judicial power is in an important sense a story of liberties taken with texts--specifically of the refusal by justices to follow the text of laws as understood at the time of their enactment and of the willingness by courts to "interpret" the law in light of various extratextual considerations. The kind of text in a given case--statutory or constitutional--did not matter. The result was the same: The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.