Antonin Scalia left us wisdom in dissent: Glenn Reynolds:
Justice Antonin Scalia is dead, and his death looks likely to set off partisan fireworks, with Senate Majority Mitch McConnell saying that Scalia’s seat should be filled not by the lame-duck Barack Obama, but by America’s next president, whoever that turns out to be.
It wouldn’t be the first time that happened — in 1968, Republicans filibustered Abe Fortas, LBJ’s pick for Chief Justice to replace Earl Warren, until after the election, allowing Richard M. Nixon to choose Warren’s successor.
And the GOP was in the minority, then.
As Josh Blackman notes, only once in the 20th Century was a Supreme Court justice nominated by a president of one party confirmed by a senate of the other party in an election year.
One might think that all this politicking in the wake of a great jurist’s death would be unseemly, but in Scalia’s case, I think it is perhaps fitting.
It was a characteristic of his jurisprudence that he favored clear rules for running the government but that
he believed the Constitution should leave as many substantive decisions as possible to politics and the elected branches.
...Even more striking were his words in United States v. Virginia, which overturned single-sex education at the Virginia Military Institute: “
Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education.
Closed minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable.
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.
That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.
So
to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change.
The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law."
Every year, that passage has seemed more relevant to me, perhaps because we live in an age in which those “smug assurances” seem especially smug.
As we remember Justice Scalia’s time, let us remember that every age’s smug certainties come to an end eventually and that the dissents of Supreme Court Justices often turn out to be prophetic.
