The death of Justice Antonin Scalia on February 13 – unexpected and, for many reasons, tragic – draws a curtain on the life and public service of one of the most important Catholic figures in America over the past half-century. Justice Scalia was regarded, by admirers and detractors alike, as the most consequential jurist of his time. He brought a remarkable intellect, a clear concept of judging, a distinguished literary style, and a biting wit to his work on the U.S. Supreme Court. His utter demolition of the majority opinion in Obergefell vs. Hodges, the decision that invented a constitutional right for people of the same sex to “marry,” is a masterpiece of devastation – as was Scalia’s dissent from Chief Justice John Roberts’ opinion saving Obamacare by reinventing it as a kind-of-tax.
But it would be a grave mistake to think of Justice Scalia’s jurisprudence as essentially negative. Rather, his judging was based on convictions about who should make the laws and how judges should function in a system of judicial review. In a democracy, he believed, legislators, chosen by the people, are free to craft laws within the bounds set by the Constitution. The judge’s task is to interpret both Constitution and statutes according to their text, and according to the text’s meaning as that meaning was understood when the text was adopted. Any other method of judging, he thought, inevitably turned the Supreme Court into a Super-Congress, in which nine unelected lawyers who were not subject to periodic elections ruled the country. That seemed to him a very bad idea. More to the point, it was not the idea of governance inscribed in the Constitution.
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