From the reaction, one may have thought that a founding father had died – or Stalin. Liberal circles rejoiced over the death of Justice Antonin Scalia and conservatives mourned. No one was ambivalent.
Republican Senate Majority Leader Mitch McConnell called him an “unwavering champion of a timeless document that unites each of us as Americans.” The Onion announced “Justice Scalia Dead Following 30-Year Battle With Social Progress.” President Obama tried his best to be diplomatic, saying of the man who stood opposite much of the progressive policies he stood for: “He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court.”
A president has to follow certain standards of respectability. Some everyday liberals are under no such obligation.
"I've never wished a man dead, but I have read some obituaries with great pleasure." - Mark Twain #Scalia— Occupy Wall Street (@OccupyWallStNYC) February 13, 2016
The animosity and praise for a man a third of Americans have never heard of is striking. In an age of social liberalization, Scalia became the man who “stands athwart history and yells 'Stop!'” This is not an insult. It is not even a partisan statement. It is how in 1955 author William Buckley defined Conservatism in the founding statement of The National Review, the publication that would become the intellectual moor of the right for over a half century. And it is the role Scalia seemed to relish.
As The Atlanticonce humorously put it: “How to win Millenials: equality, climate change, gay marriage.” In addition to these factors, college students overwhelmingly support the Affordable Care Act, gun control, and, especially considering their diversity, are most affected by affirmative action. If nothing else, Bernie Sanders’ ascent has made that clear.
Since Obama entered office, the Supreme Court has debated almost all of these issues and, in each case, Scalia offered his verbose dissent.
In Romer V. Evans, the first Supreme Court case to grant gay rights, he wrote in dissent: “It is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals — and could exhibit even 'animus' toward such conduct.”
Asked about gay rights in 2015, he said in response “What about pederasts? What about child abusers?” In the final Obergefell v. Hodges ruling that legalized gay marriage that year, he wrote of Justice Anthony Kennedy’s flowery majority decision, “the court has descended to the mystical aphorisms of a fortune cookie.”
Indeed, he wrote almost always in dissent, a reflection of his views opposite the winds of policy. As Dr. Laurel Harbridge, an asistant professor in Northwestern's political science department, explained, that’s where his influence ended:
“He might be more vocal [than other judges],” Harbridge said. “But I’m not sure… he dramatically changed the conservative view.”
Instead, he espoused in the most vibrant and visceral terms the conservative idea of originalism: that the constitution must be viewed as to the original intent of the founders, as opposed to “contemporary ratification” where it’s continually reapplied. Time after time in his dissents on gay marriage, he pleaded for the court – as he put it “a select, patrician, highly unrepresentative panel of nine” – to leave it to the legislatures – the people – to decide.
Although some have said he was more motivated more by politics than principle, noting a case where he ruled for broader gun rights, despite his acknowledgement that the role of firearms have changed since the second amendment was written, Harbridge said there’s good political science evidence that judges are primarily motivated by their views on the Constitution.
This view, and Scalia's defense, made him a lion of conservatism.
“To say Scalia was anti-progress is to say that democracy should take a backseat to nine people's view of proper social change,” said Will Pritzker, president of Northwestern College Republicans.
It’s a view Weinberg senior Kevin Cheng, president of College Democrats of Illinois, said he disagreed with, but that he respected.
Whether or not the senate votes on a nominee during President Obama’s final year, the decisions upholding gay rights and the Affordable Care Act will stand, Harbridge said.
“Justices adhere to law,” she said. “They will defer to precedent, so I doubt any major decisions will come down.”
And the cases that were up for debate this year, against affirmative action and Obama’s climate change regulations, are now likely to result in a 4-4 tie. That affirms the lower court’s decision, but doesn’t set precedent, meaning race-based admissions and pollution regulations stand.
Like Buckley before him, Scalia stood athwart history, yelling stop – but yelling into the wind.