Antonin Scalia

The method announced itself early, and never more purely than in dissent. When the Court upheld the independent-counsel statute in Morrison v. Olson (1988), Scalia, not yet two years on the Court, dissented alone, and gave separation-of-powers law its most quoted paragraph: 'Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.' Months later he was alone again, calling the new Sentencing Commission 'a sort of junior-varsity Congress' in Mistretta v. United States (1989). The Morrison dissent was derided as extremism in 1988; the independent-counsel law was allowed to die a decade later, and the dissent's theory of the unitary executive now sits closer to the center of the law than the majority it answered. Losing first and winning later became his signature: he was, as he told a law-school audience in 2008, 'a textualist' and 'an originalist,' but 'not a nut,' and the Constitution he defended was not a living document. 'It's dead, dead, dead,' he cheerfully told another audience in 2013, by which he meant enduring: its guarantees fixed, its changes to be made by amendment and legislation rather than by five lawyers. He gave the method its books, A Matter of Interpretation in 1997 and, with Bryan Garner, the 567-page Reading Law in 2012, and he gave it a generation of readers.

The majorities show why the method could not be mapped onto a party platform. Employment Division v. Smith (1990) held that neutral, generally applicable laws need no religious exemptions, since a rule of individualized conscience 'would be courting anarchy'; it infuriated his fellow conservatives, provoked the Religious Freedom Restoration Act, and remains contested inside his own movement. Crawford v. Washington (2004) rebuilt the Confrontation Clause around the defendant, in the teeth of decades of prosecutor-friendly doctrine: the Constitution 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' He voted to protect flag burners in Texas v. Johnson (1989) and spent the rest of his life explaining it: 'If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,' he told an audience in 2015. 'But I am not king.' And District of Columbia v. Heller (2008), an exhaustive originalist opinion, established the individual right to keep arms: 'The very enumeration of the right takes out of the hands of government' the power to judge it case by case, and whatever the future made of gun policy, 'it is not the role of this Court to pronounce the Second Amendment extinct.'

The dissents were the show. He answered Planned Parenthood v. Casey (1992) with a four-word verdict on the joint opinion the Souter (§105) and Kennedy (§104) chapters recount: 'The Imperial Judiciary lives.' Abortion, he wrote, should be resolved 'like most important questions in our democracy: by citizens trying to persuade one another and then voting.' School-prayer psychology in Lee v. Weisman was dispatched with 'interior decorating is a rock hard science compared to psychology practiced by amateurs'; the ACA's second rescue in King v. Burwell (2015) was 'interpretive jiggery-pokery,' and 'we should start calling this law SCOTUScare'; DNA swabs of arrestees in Maryland v. King (2013) drew the closing doubt 'that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.' When the Court found a right the framers had not written down, in Lawrence, in Windsor, in Obergefell, the answers escalated from the 'famed sweet-mystery-of-life passage' jibe recounted in the Kennedy chapter (§104) to the footnote swearing that if he ever joined an opinion so written 'I would hide my head in a bag.' The style was a jurisprudential position in itself, that error deserves ridicule, and it kept the courtroom awake: a law professor who counted laughter in the argument transcripts found Scalia first in every term he measured, fifty-four eruptions in a single year. Whether the barbs cost him the fifth votes his method needed is the great counterfactual of his tenure; Ruth Bader Ginsburg (§107) thought the barbs and the man separable, quoting his own rule at his memorial: 'I attack ideas. I don't attack people. Some very good people have some very bad ideas.'

By the Supreme Court Database's coding, as computed for this site, he cast a liberal vote in 35.3 percent of nearly 2,800 coded cases against a 49.8 percent average for the colleagues who sat on the same cases, a gap of more than fourteen points, twenty-ninth of the thirty-three justices the site's panel ranks; yet the great dissenter's dissent rate, 16.8 percent, sits a shade below his colleagues' average. And on the question that has run through the last two chapters, who moved, Scalia is the control case: normalised for the bench around him, the site's drift measure puts his movement at effectively zero, twenty-seventh of thirty-three, the fixed pole other justices drifted past. Off the bench he was the Court's happiest warrior: the annual hunting trips, including the 2004 duck-hunting weekend with Vice President Cheney that produced a recusal demand and a defiant memorandum refusing it ('If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.'); the deer hunts that made an unlikely field companion of Elena Kagan (§112); the reply to a Boston reporter who called his chin-flick obscene: 'That's Sicilian.' The friendship with Ginsburg, his ideological opposite, was the town's favorite proof that the arguments were not personal: the opera nights her chapter recounts, the elephant they rode in India in 1994, the comic opera Scalia/Ginsburg premiered in 2015, his shrug when asked about her: 'What's not to like? Except her views on the law.'

He died in his sleep on February 13, 2016, at the Cibolo Creek Ranch in far West Texas, on a hunting trip, at seventy-nine; the death certificate said myocardial infarction, and the county judge, after consulting his physician and the marshals, ordered no autopsy. The political earthquake arrived within hours, ahead of the eulogies: the Senate majority leader declared that the vacancy 'should not be filled until we have a new president,' President Obama answered that he would 'fulfill my constitutional responsibilities to nominate a successor in due time,' and the year of Merrick Garland and the seat's eventual passage to Neil Gorsuch, told in the Gorsuch chapter (§113), became the fourteen-month epilogue. He lay in repose in the Great Hall; at the funeral Mass his son, Father Paul Scalia, told the basilica his father had been 'a practicing Catholic,' practicing 'in the sense that he hadn't perfected it yet.' George Mason University renamed its law school for him within weeks, and a posthumous Presidential Medal of Freedom followed in 2018. Ginsburg's farewell quoted the duet from the opera about the two of them: 'We are different, we are one.' He had served twenty-nine years and insisted to the end that the document he guarded was dead. The argument he built around it has never been more alive.