US Supreme Court Justice Antonin Scalia was 79 years old when he died yesterday. Nobody seems to have expected his sudden and untimely death; however, at this age death is never something that should be considered remote.
The newspapers are now full of comments on the man and his achievements, and the more benevolent ones call him “brilliant”, while others call him “ultra-conservative”. Without doubt, he was more “brilliant” than ultra-conservative”, but what set him off against many of his colleagues at the US Supreme Court was something quite different.
Rather than an extraordinary legal thinker, Antonin Scalia simply was a sound, serious-minded lawyer. He was a judge who understood well what a judge’s task is: to apply the law, not to make it.
He was not an Evangelical from the Bible Belt, who might have been tempted to put his own religious beliefs in the place of the laws he was called to apply. Nor was he known for basing his reasoning on Natural Law, as the Catholic Church does. His openly professed “Originalism” was a moderate form of legal positivism, according which, while generally it is the wording of a law that must determine its interpretation, it is ultimately the will and intention of the original law-maker that must be searched for. This is not particularly original, nor is it particularly “conservative”, but it is a fundamentally sound approach to interpreting laws, which is nearly universally recognized among lawyers.
If following such an approach makes you “ultra-conservative”, then only ultra-conservatives should be allowed to become judges.
The tragedy of Liberals, in particular those at the US Supreme Court, is that their seemingly “liberal” attitude is in fact a very dangerous form of tyrrany, brushing aside the law and replacing it with wilfulness. This is what has actually undermined the US Supreme Court, and with it the entire political and institutional system of the United States. It is one of the remarkable failures of the country’s political class that, instead of fighting the Supreme Court’s judicial activism, many politicians instead sought to use it as a means to advance their own, mostly radical, social agenda.
Last year’s absurd judgment in the case of Obergefell v. Hodges, for example, was only possible thanks to two Obama nominees, who, as is clear in hindsight, had not been selected in view of their professional merits, but because the President and his allies could rely on their willingness to use their office to further the radical, irrational, and indecent ideology that this controversial decision stands for.
In the interest of the US and the rest of the world we must hope, therefore, that President Obama will not succeed in getting yet another of his minions on the Supreme Court’s bench.
Obama is right, of course, when he says that his task is now to find a successor for Justice Scalia as quickly as possible. And it is true that it would not be good to leave the post vacant for too long. However, if the President is serious about filling the post quickly, he had better find a candidate that convinces the Senate as well.
It is “ultra-conservatism” more than anything else, that qualifies good judges, preventing them from evolving into tyrants.