I have been torn for the last week on whether or not to post something on the late Supreme Court Justice Antonin Scalia. After all, there is already a flood of commentary out there (pro and con), including numerous Catholic journalists and bloggers weighing-in on the matter. Amidst all of the heartfelt praises and damn demonizations has come some soberminded analysis as well, such as Eric Posner’s eyebrow-raising (albeit incomplete) analysis of Scalia’s legal influence. That doesn’t start to measure Scalia’s far more potent political and jurisprudential influence, however. Several generations of lawyers, judges, and law professors have been influenced by both Scalia’s originalism when it comes to constitutional interpretation and textualism with regard to statutes. At the political level, American conservatives have long looked to Scalia as their champion on the Court, wryly picking apart the opinions of his fellow liberal justices while attempting to fashion a legal basis upon which to roll back “living constitutionalism,” if not now, then at some point in the (distant?) future. And even if Scalia’s influence peters out over the next generation, there can be little doubt that his writings from the bench — particularly his dissents — will be marveled over for centuries for their rhetorical genius.
For what it’s worth, I have never been very high on either Scalia or originalism. In my first foray into legal-academic writing (which I am not inclined to defend too strongly these days), I found myself siding with Harry Jaffa’s “Straussian” critique of originalism as a historicist jurisprudence unfit for a vibrant and virtuous democracy. Over time, however, I became less convinced of Jaffa’s account of how the Constitution should be interpreted and started to appreciate the consequentialist defenses of originalism as a means of limiting the courts’ capacity for running roughshod over classical federalism. Still, there is no denying that originalism, as a judicial philosophy, is riddled with difficulties, not the least of which being its abhorrence toward the natural-law tradition. Why that doesn’t appear to bother more (American) Catholics is something of a mystery, but I digress.
No one expects the upcoming political battle over Scalia’s replacement on the Court to be either pretty or edifying. Some are hoping the appointment can be delayed until next year when either Hillary Clinton or Donald Trump take the Oath of Office. Either way, it is doubtful that Scalia’s successor will carry either the gravitas or talent he did to the bench regardless of their ideological persuasion. Besides, the arrival of a single conservative justice to the Court will do next-to-nothing to undo the social and moral damage which has already been inflicted on the nation. Catholics, particularly conservative Catholics, need to learn that the Supreme Court will not save us, nor for that matter will the liberal democracy so many desperately cling to as the surest means of securing our freedom.