With the death of Antonin Scalia, the Supreme Court has lost one of its greatest jurists. Even in our nation’s highest court, most of the writing is bland and the arguments forgettable. Few justices stand out from the crowd of opinion-writers stretching from the founding to the present. It’s mostly a black-robed blur, a parade of empty names disconnected from any faces, memorable neither for their prose nor for their ideas.

A few, however, tower over the rest. The great Federalist Chief Justice, John Marshall, for example. No justice has ever written with greater clarity and elegance. Though his successors were appointed by presidents of the other party, he authored a series of unanimous opinions that have enduringly defined the fundamental principles of our Constitution.

A century after Marshall, we find Oliver Wendell Holmes — incisive, laconic, brilliant, the author of perhaps the most quoted (and most misunderstood) line in all the annals of the U.S. Supreme Court, “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” A champion of pragmatism and progressivism, Holmes devoted the whole force of his formidable intellect to freeing the government from constitutional constraints on its power to regulate the economy.

And, a century after Holmes, we had Justice Scalia, whom future law students will love to love and love to hate, much as today’s students react to Holmes. Indeed, Scalia stands in the same relationship to modern conservatism as Holmes does to progressivism.

Like Holmes, Scalia championed his own distinctive approach to constitutional law, and like Holmes, Scalia used his cutting wit to cleave through his adversaries’ muddled logic. Whereas Holmes was a pragmatist, Scalia embraced “textualism”: he argued that judges should try to give effect to the laws as written, not try to re-interpret them to make them better, or wiser, or more modern than they are. With respect to the Constitution, that meant trying to apply its terms as they were understood when they were adopted — in accordance with the “original understanding.”

Scalia fiercely rejected the idea that it was up to the judges to adapt the Constitution to changing times. The Constitution was ratified by the people; therefore only the people, not the justices, have the right to change it. And our democratically elected lawmakers always have the power to make new laws to suit the times.

Although the Supreme Court has been nominally conservative at least since the presidency of Ronald Reagan, it is remarkable how little our constitutional law has shifted rightward during that time. Justice Scalia has set the court’s doctrine in only two major areas — with respect to the free exercise of religion and the right to keep and bear arms.

In District of Columbia v. Heller, Scalia wrote the Opinion of the Court that held that the constitutional “right of the people to keep and bear arms” in fact means that people have the right keep and use firearms.

In Employment Division v. Smith, Scalia made it more difficult for believers to win religious exemptions from laws that apply generally but that happen to interfere in some way with their exercise of religion. It was not a decision that many conservatives cheered at the time, though it provoked Ted Kennedy into seeking enactment of the federal Religious Freedom Restoration Act.

Primarily, we know Scalia from his unforgettable, often caustic dissents. In an era when the Supreme Court has consistently read the moral commitments of the 21st century social left into the 18th and 19th century text of our Constitution, Scalia dissented again and again.

But that is only a nice way of saying that on the central issue that was most important to him — whether judges should re-animate the fixed and static text of our Constitution to make it live according to their ideas of what it should say — he lost, repeatedly.

He would not have been surprised at the political storm his death has provoked; in a way, he predicted it in his epic dissent in Planned Parenthood v. Casey.

He argued that the Supreme Court is so controversial, precisely because it does not limit itself to relying “upon text and traditional practice to determine the law.” If the judges will claim the power to re-make the Constituiton, American citizens will demand the right to choose the judges. Thus Scalia predicted that we will have “a sort of plebiscite” each time a new nominee to the Court is proposed.

Alas, that plebiscite seems to have already begun.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

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