WHY EVEN LIBERALS SHOULD MOURN JUSTICE SCALIA

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In 1953, Justice Jackson wished that the Court could have decided a case that came before them “by analysis of the statute instead of by psychoanalysis of Congress.”  Justice Black is said to have echoed this sentiment in speeches, saying how courts should perform an analysis of the law, not a psychoanalysis of the lawmaker.

Influential as both Justice Jackson and Black were in their time, it is Justice Scalia who heralded an era when all decisions, whether the results end up “conservative” or “liberal” to the political sorts, are based first on an analysis of the text Congress enacted.

Scalia impacted the field of law with more than textualism.  He also insisted that the text be read according to the meaning it had when it was enacted, even if it was written two centuries ago.  That made him the conservative icon most write about today, following his death this weekend.

But it is his insistence on adherence to the text of the law first and foremost that has made the most profound impact and will surely stand as Scalia’s most lasting legacy.  By tethering judges to the law they are sworn to interpret, Scalia has made the court more accountable to Congress, and through Congress, to the people they serve.  Sometimes the chips fall to the left, sometimes they drop to the right.  But Scalia’s service to the law went beyond the partisanship already howling around the choice of his successor.  He ought to be mourned today by all who value justice – even those who for many years have loved to hate him.

Indeed, though he is not often thought of that way, Scalia was a champion of courts being circumscribed by both the Constitution and Congress.  His most cited opinions give power to juries over judges, protect defendants’ right to confront their accusers, but also rationalized access to the courts by associations on behalf of their members.  He would protect the court from the mighty (all-powerful judges) and the citizenry (too-litigious people) alike, and maintain their proper place in our constitution.

If Scalia and Ginsburg, who are thought of as being at opposite ends of political rancor, had such a close friendship, it is likely because they each saw how  the other respected the role of the courts in doing justice, even if they ended up with opposite conclusions on how that was done.  This respect for a larger cause is best remembered today.