Till early 2000s I claimed to actively dislike his views. I say ‘claimed’ because I based my judgment, like many others, on snippets of his judgments without actually reading them. I thought he was one of those who stood in the way of social progress — today as I mourn his passing, and celebrate all that he taught me and millions of others, I think he was one of the greatest judges ever to have graced the bench in any common law system.
Antonin Scalia, Associate Justice of the Supreme Court of the United States, breathed his last on February 13, 2016. On March 11, he would have turned 80. Once I found out that his birthday was only a week after mine I always celebrated his.
He died in his sleep. All his admirers can take some solace in the fact that even on his last day he was doing something he deeply enjoyed — having observed quail hunting.
I cannot remember the exact moment I became a Scalia devotee. Maybe I just grew up and started asking myself more questions. Did I as a citizen really want unelected judges re-writing the constitution? Should everything I find abhorrent be deemed unconstitutional? Should the most contentious issues in a democracy be decided by unaccountable judiciaries or elected representatives? Should we judge cases only by outcomes or the approaches involved in reaching those outcomes? The more I read of him, the more I (a diffident young law student) felt I had found an anchor. He answered all the questions I could throw at him and he pre-empted follow-up questions. Each judgment I read of his was an experience in its own right. I started hearing his voice in the opinions he wrote and we all know he put his heart, soul and more into what he wrote. He was like a grand-father explaining things to me, and so many others, as we negotiated issues of federalism, free speech, freedom of religion, inter-state commerce, statutory interpretation etc.
David Lat, founder of the ATL blog, has recently written a most beautiful tribute to Justice Scalia; describing how Lat got chills reading Scalia opinions and once gave Scalia a standing ovation at 2am, standing by himself in his apartment. Many Scalia devotees will tell you similar stories.
He was often accused of being a textualist. And he was not one. He went to great lengths in his interviews to explain that he was an originalist. He brought back originalism as a legal philosophy. Now there are variants of originalism but Scalia’s originalism asks us to interpret the constitution as per the meaning of its words when it was written. He does not ask you to get inside the heads of the framers and ask what they were thinking or why did they vote on a particular issue a certain way. You just have to ask yourself, what was the reasonable meaning of these words understood by the people at the time these words were written? At times this approach has been accused of being static but it really is not.
In First Amendment cases, Scalia held that since free speech was envisaged then the technology used for that speech does not change anything. So it is not as if the First Amendment becomes inapplicable to new technologies. Same is the case with the constitutional provisions relating to unreasonable searches. Regardless of the technology, the principle remains the same.
Scalia convinced me that adopting judicial restraint and judicial conservatism can even lead to fundamentally liberal outcomes. During the War on Terror when some liberal Justices of America’s top court bought the argument for detaining American citizens without charge or hearing, Scalia shot back that the Due Process Clause binds the government. Since Congress had not authorised suspension of the writ of habeas corpus the detention was illegal. He held, true to his faith that the words of the Constitution did not change in their meaning over time. As he famously once said, “the constitution is not an evolving document. It is an enduring one.” Yes, I know. Say that to yourself a few times. If you do not get chills, check your pulse.
His greatest critics are those who believe in the ‘living breathing’ constitution. But Scalia would say that words have no meaning if you say the meaning of the words in the supreme national document is always changing. And who decides the meaning has now changed? Unelected judges? “Come back to us in a few years!” was another one of his famous retorts when mocking the ‘living breathing’ school.
He reminded us of our responsibilities as citizens, and of the importance of persuasive discourse, in a democracy. If you want something done or undone, do not do violence to the language of the Constitution. Get involved in the political process. Things abhorrent or desirable cannot always be dealt with by twisting the constitution to get there. Pass a law — convince your fellow citizens instead of knocking at the doors of judges who are not accountable and whom you cannot vote out.
Equally important was his concern that deeply contentious issues in societies (and there is no exhaustive list of these) cannot and should not be settled by the judiciary. If the point is to get rid of animus towards a particular group, what is the better remedy — getting a court verdict or having your legislature act on it? If you do not like the outcome, you get rid of the legislators.
But what do you do when you encourage judges to constantly re-write the constitution by citing the ‘living breathing’ argument? How do you ever change things once a top court rules on something? Well, some might say by amending the Constitution. Well just passing a law on it (in the first place) is surely a helluva lot easier than having to pass a constitutional amendment. And if you really, really want something to be put into the constitution then be willing to fight for it through the political process — because that is how democracies work.
There is something of a lazy civic sense about an outlook that calls for judicial activism. Oh, let the judges handle it. Scalia urged us to be active citizens — and be prepared to fight for what you want by engaging with each other and our elected representatives. His opposition to the ‘living breathing’ school of thought has particular relevance in Pakistan — our constitution is not difficult to amend so why should the meaning of words change over time?
To some it may seem funny but many of us who owe him a lifetime of gratitude have never felt sadder at the death of someone we never met. He was a constant guide, an inspiration, a teacher — as we pored over legal problems and imagined him solving complex puzzles with us. “Think like Scalia!” is how I often admonish myself when I am stuck with a legal problem. During late evening runs or drafting at 1am alone in my office, as I thought about puzzling questions, I mumbled thank you to him so many times. I did not always want his certitude but he only became more endearing to me because of it.
I cannot ever do him justice with one piece so I will try again at some point. Not having met him remains a great regret. Just as big a regret is that I will never be able to test my skills as a litigator by arguing before him. That was the ultimate dream — me at the Bar and him on the Bench. Just thinking of it would, and still does, give me goose-bumps.
Thank you, Nino. There will never be another like you. And you taught us so much. Many will always disagree but I, for one, will miss your brilliance, your warmth, your teaching and you clasping your hands and saying, “well, that is my view. And it happens to be correct.”