Guardian of the Constitution: Who Was He? Who’ll Choose His Successor?

Within hours of Antonin Scalia’s unexpected death last Saturday came an avalanche of often-contradictory views on what this conservative U.S. Supreme Court justice was really like.

And the views mainly concerned whether his replacement should be determined by Barack Obama, as American commentators on the left would favor, or by the president’s successor. The latter is a clearly conservative opinion, or more precisely wishful thinking that a reasonable Republican will win the November election and install someone with an intellect and disposition similar to Scalia’s. In this instantly politicized atmosphere, there was no time for reverent mourning. And the man will be buried on Saturday at that.

The Right To Face One’s Accuser

There are nine U.S. Supreme Court justices, the equivalent of Czech constitutional judges, but appointed for life — unlike the 15 members of the Constitutional Court in Brno, who hold a 10-year term. The life appointments mean that the justice in question can leave a sizable mark on the American system, and thereby, given America’s position as superpower and leader of the free world, on the rest of the planet as well.

It was above all Scalia who in the 1990s pushed through the decision that a person accused of a criminal offense always has the right to confront the person’s accuser. The right is anchored in the Sixth Amendment to the U.S. Constitution, but many precedent-setting decisions appeared in the course of the 20th century markedly limiting it in favor of the victim simply so that the victim would not have to see his or her tormentor again. The issue’s importance has come to light in cases where someone turns out to have been wrongly accused of a sexual offense. Of course, courts around the world have not had to follow Scalia’s ruling, but legal examples from the U.S., as is well known, migrate.

Who’s the Racist Here?

Scalia was born in New Jersey, the child of Italian immigrants. Ronald Reagan appointed him to the Supreme Court in 1986. Republicans extol Scalia as a legal giant who tried, albeit not always successfully, to put the brakes on liberal interpretations of the U.S. Constitution. Scalia stood up fiercely not only against abortion, opposing the view that it represents some a priori right, but he was also against the idea, for example, that it’s necessary to protect minorities by means of affirmative action, as exists in today’s widespread practice of awarding scholarships at American universities. If a person is African-American, Latino, Indian, or perhaps of homosexual orientation, then his or her chance of financial support is greater than for an ordinary white person who also simply wishes to attend college.

“To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred,” Scalia memorably wrote in one of his opinions. [Adarand Constructors Inc. v. Pena, 1995]

In short, what liberals considered progress and the correction of injustices, he saw as being at the core of precisely the thing against which these same activists were fighting. From which arises the critical question: Was Scalia right?

The fact is that this man who just died at the age of 79 remained isolated on the Supreme Court. He couldn’t put a brake on affirmative action. Whereas Republicans always lauded him as a giant, liberals tried to ridicule him as a bigoted, inveterate Catholic.

Right To Pack Heat? It’s in the Constitution

Scalia was also known for an ability to rise above the ideological trenches in his personal relations. He had a close friendship with fellow justice Ruth Bader Ginsburg, who is by contrast a titan of the left. They attended opera performances together and organized joint family gatherings. “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,” Ginsburg stated a few days ago.

“Now and then” is obviously a euphemism, since they hardly agreed on anything: whether terrorists in Guantanamo were entitled to a fair trial, whether Obama’s health care plan was unconstitutional, or whether Americans have the right to bear arms.

The last one, let’s add, is the subject of a well-known debate on how to interpret the brief statement of the Second Amendment.

Scalia always judged that the Constitution had been laid down once and for all and could not be adapted to momentary demands, and that bearing arms was simply a right, because that’s how it’s stated. Ginsburg advocated the view that the Constitution is a living document and subject to new interpretation — perhaps even to the point of radically limiting the social trend in cultivating a taste to pack heat and even making modern semiautomatic assault rifles with high-capacity magazines.

Once again, we may ask: Is Ginsburg right? Is it allowable to construe the Constitution – “now and then” to use her words – according to modern, enlightened taste? Or is – again, without too much hyperbole – everything in the world, including the U.S. Constitution, relative? The Supreme Court has always leaned towards Scalia’s side on the question of arms.

When someone says “U.S. Supreme Court,” the controversial decision of 2000 frequently comes to mind. That’s when this institution ended the protracted issue of who had won the presidential election. The results of the showdown between George W. Bush and Al Gore were very close. In Florida, it was so close it wasn’t clear who’d won there, which led to demands for the ballots to be recounted again and again. Although it’s not the Supreme Court’s job to decide such matters, there was no other authority in the United States. Congress is guided by political interests, as is the outgoing president — who at the time was Democrat Bill Clinton.

The court decided the matter twice in rapid succession. The first time it rendered a 7-2 decision, the second time, the court ruled 5-4. In both cases, Scalia joined the majority which demanded an end to the nearly unbearable situation in which Bush had a few votes more, but the Gore camp kept contesting it.

“The whole world was laughing at the world’s greatest democracy. They could not complete an election. We decided to cut it off and let the world move on,” as Scalia later justified the decision.*

A few months later, on Sept. 11, 2001, terrorists struck at the United States. Would it have been better if Gore had been in the White House then?

* Editor’s Note: Though this quote is accurately translated, only a portion of it could be independently verified.