February 17, 2016

GLANZEL | Scalia

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Antonin Scalia was never popular at Cornell. Whenever the name Justice Scalia surfaced in any of my government courses, a collective sigh of anger and frustration filled the room. Yet for some of us, Scalia was an unapologetic trail blazer. While certainly there were numerous decisions in which I strongly disagreed with the late jurist, I nevertheless found Scalia to be one of the most decent, brilliant and profoundly transformational members of the high court.

My admiration for Scalia emerged in the first Supreme Court case I ever followed: Maryland v. King (2013). The case revolved around the question of whether a Maryland law, which gave the police the authority to obtain  DNA evidence (via a saliva swab) without a judge-issued warrant, was constitutional under the Fourth Amendment.  At the time, I firmly believed that the Maryland law was unconstitutional. It was (and still is) my belief that DNA constitutes an individual’s property –– and the Fourth  Amendment protects from warrantless searches and seizures of property. However, the Court disagreed with me. In a 5-4 ruling, the Court upheld the Maryland law, stating that obtaining DNA without a warrant was no different from obtaining a fingerprint without a warrant.

While I saw Maryland v. King as a great defeat for property rights, I also found my judicial hero.  The majority opinion was mostly made up of the Court’s conservative wing –– Justices John G. Roberts, Anthony Kennedy, Samuel A. Alito and Clarence Thomas –– along with Stephen G. Breyer, a reliable liberal on the Court.  However, Scalia was notably absent from the majority.  Surprisingly, the jurist stood with the more liberal wing of the Court (Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan) and wrote the dissenting opinion.  Instead of simply blending into the conservative majority, Scalia stood on principle, brilliantly stating: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime … The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”

In a world wrought with frivolous partisan divides, Scalia brought a refreshing blunt style to the Court. His King dissent was one of numerous instances in which Scalia sided with the Court’s liberal wing –– and quite frankly, Scalia didn’t care if his more liberal decisions (or any of his decisions for that matter) made people angry. For Scalia, the question of the Constitution was not one of popular opinion. Instead, the Constitution represented the anchor of a republic –– the foundation of an ever-changing society. So, if standing with the Court’s liberal wing meant preserving the principles of the Constitution, then Scalia was more than happy to join his left-leaning colleagues. These ideals –– though not popular with many Americans –– prove that one can cross the partisan aisle and simultaneously stand on principle.

Scalia’s principles helped to bring a renaissance to conservative legal ideology. Prior to Scalia, conservative judicial philosophy revolved around the idea of originalism –– the idea that the Constitution should be interpreted based on the intentions of the founding fathers. However, as time progressed many began to point out the flaws in this method of legal reasoning. The framers were inherently political beings and had clear disagreements as to how the Constitution should be interpreted. So, if the founders disagreed as to the interpretation of the nation’s laws, how can one truly discern their intentions?   

In place of originalism, Scalia helped to construct stronger legal theory: textualism.  Though a cousin to originalism, textualism states that one cannot look to the intentions of the framers.  Instead, the idea holds that one must simply look to the text of legislation to determine how it should be implemented. Scalia’s constant advocacy of this legal theory helped to drastically change the composition of modern jurisprudence. Today, not only do notable conservatives utilize textualist theories (such as Justice Alito), but some liberals have even begun to adopt the theory.

While Scalia’s accomplishments will forever enshrine the books of legal theory, history often forgets to tell the story of great men and women like Scalia. Scalia was a man who could easily fill the room –– his bold voice, brilliant intellect and constant humor made the justice the center of attention wherever he went. More importantly, his decades-long friendship with liberal Justice Ruth Bader Ginsburg ’54 could teach Congress a lesson in civility. Though Scalia was often cited as the leader of the Court’s conservatives, and Ginsberg as the leader of the Court’s liberals, the two justices were able to share a deep bond.  In her touching tribute to Scalia, Justice Ginsberg wrote: “We were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation … It was my great good fortune to have known him as working colleague and treasured friend.”

Michael Glanzel is a sophomore in the College of Arts and Sciences. He can be reached at mg786@cornell.edu. Cornell Shrugged appears alternate Thursdays this semester.

3 thoughts on “GLANZEL | Scalia

  1. Please correct this article: Scalia was a true originalist — not a textualist. He said as much. Though I was taught the same as you while at Cornell. Otherwise, well-written piece. A fitting tribute.

  2. Hi Michael,

    Good article. I too am a fan of Scalia.

    I noticed that you mis-characterize originalism. Originalism is not about relying on the intent of the Framers or of legislators at the time the Constitution/statutes are drafted. Instead, as Scalia says, “What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended” (from “Common Law Courts in a Civil-Law System”). We can think of situations in which what lawmakers intended may actually differ from the law they legislated. Relying on intent is known as legislative intent (another lens of legal analysis), which is anathema to Scalia. For him, it doesn’t matter who intended what, where, and when. What matters is the what the text says (textualism) and how it was understood (by everyone) at the time it was adopted (originalism). Scalia in fact cared about both.

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