Cathy Young is a contributing editor to Reason magazine.
The sudden death of Supreme Court Justice Antonin Scalia over the weekend may well reshape the course of the 2016 presidential election. But his passing is also an occasion for reflection on politics and the culture wars. The 79-year-old justice was on what most of us see as the wrong side of a major social issue of our time: gay civil rights. Yet in retrospect, it seems clear that his crusty conservatism was an essential contribution to national discourse.
Scalia was often reviled as a bigot, particularly after his caustic 2003 dissent in Lawrence v. Texas, which struck down state laws criminalizing sodomy. Yet some legal commentators who strongly reject Scalia’s view that state governments should be able to punish sexual acts between consenting adults, such as University of Tennessee law professor and author Glenn Harlan Reynolds, nonetheless appreciate his more basic argument against judicial activism.
This argument was eloquently stated in Scalia’s dissent in United States v. Virginia, which held that the Virginia Military Institute had to admit women. Such changes, Scalia insisted, should be a matter of legislative action and public debate: “The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.” When judges effect change by discovering new constitutional rights, he wrote, they risk insulating “the smug assurances of each age” from the democratic process.
Which rights are so fundamental they should not depend on majority approval? To some extent, the answer inevitably evolves in keeping with prevailing opinions and sentiments, and Scalia’s determination to oppose such evolution was not only cantankerous but quixotic. But it was also a necessary check and balance, as it were, on the liberal tendency to treat the Constitution as a document that means whatever the progressive elites want.
Many critics — myself included — have faulted Scalia for his own predisposition to find that constitutional doctrine aligns neatly with his own philosophical beliefs, particularly with regard to religion and gay rights. Scalia had strong views on these issues; in a 2002 speech, he even deplored the “tendency of democracy to obscure the divine authority behind government.” Those convictions clearly colored his legal opinions; his dissents leave little doubt that he regarded governmental affirmation of monotheistic faith as not simply constitutional but essential to the civic order and sympathized with the use of the law to maintain the traditional moral stigma against homosexuality.
But this criticism, while warranted, underrated Scalia’s judicial contributions in areas that cannot be readily classified as conservative or liberal — if anything, perhaps libertarian. He was a staunch defender of the First Amendment, upholding the right to burn the American flag as protected expression. While he backed the death penalty, he voted repeatedly to abridge prosecutorial and police powers; Slate legal columnist Mark Joseph Stern praises his efforts to restore the long-neglected right of defendants to confront the witnesses against them.
Stern, a liberal and a gay man, calls Scalia “one of the truly great justices” despite abhorring his views on social issues. This surprising tribute recalls Scalia’s own ability to disagree without demonizing, exemplified by his warm friendship with liberal feminist Justice Ruth Bader Ginsburg. Such capacity to see an ideological opponent as a human being, not “the enemy,” is increasingly lost in our toxic political climate — as demonstrated by some Twitter leftists’ nasty attacks on Stern because of his overly gracious Scalia obituary. It is a fitting coda to Scalia’s career: a reminder that some old-fashioned virtues are worth preserving.
Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.