Welcome back to another Deep Dive. Today we are
opening a file that, and I'm not exaggerating
here, it feels a bit like looking at an artifact
from a lost civilization. Yeah, that's a good
way to put it. We're talking about a specific
moment in American history and a specific man
who completely rewired the way we think about
the law, the Constitution, and really the role
of a judge. We are talking about... Justice Antonin
Scalia. Nino to his friends. And you're right
about that lost civilization feel. When you look
at the confirmed biographical records and just
the political history surrounding his appointment,
it honestly feels like we're talking about a
different planet, not just a few decades ago.
I want to start right there, actually, because
I was digging through the numbers in our source
stack and I found a statistic that completely
stopped me in my tracks. It's a vote count, 98
to 0. I have a feeling I know exactly which vote
you're referring to. That was the Senate confirmation
vote to put Antonin Scalia on the Supreme Court
in 1986. Ninety eight to zero. Unanimous. It's
staggering to think about now. In today's political
climate, that sounds like absolute science fiction.
I mean, we're used to confirmation hearings that
look like gladiatorial combat. Right. But here
you had everyone, Democrats and Republicans,
saying yes. And we have to be clear about who
everyone was. That wasn't just moderate Democrats
or something. That was Joe Biden voting for him.
That was Al Gore voting for him. That was Ted
Kennedy voting for him. The political landscape
was just. It was entirely different. And there's
this fascinating quote from Joe Biden years later
that really stuck with me. He said he regretted
not opposing Scalia. But, and this is the key
part, not because Scalia wasn't qualified. He
said it was because Scalia was so effective.
That word effective is doing a lot of heavy lifting
there. A lot. Because Scalia wasn't just another
conservative vote on the bench. He wasn't just
a guy who would reliably vote for the Republican
policy outcome of the day. He was an intellectual
revolutionary. It really was. He installed a
completely new operating system, to use a tech
metaphor, into the American judiciary. And. That
is our mission for this deep dive. We aren't
just going to list his famous cases or read through
his biography like a Wikipedia page. We want
to understand that operating system. We want
to get inside the logic of how the son of an
Italian immigrant became the intellectual anchor
of the Supreme Court for 30 years. Right. We
need to break down these big kind of scary legal
terms like originalism and textualism, which,
you know, they get thrown around on cable news
all the time without a lot of explanation and
figure out what they actually mean. Because Scalia
didn't just use these tools. He sharpened them.
And in a way, he forced everyone else to use
them, too. Plus, and this is the really interesting
part for me, we have to reconcile this massive
paradox that kept popping up in the research.
Here you have a man who is a devout traditional
Catholic. Someone who, by his own admission,
believed the devil was a literal presence in
the world. A very real person to him, yes. But
the same man also wrote opinions defending flag
burners, video game makers, and accused criminals
against the police. It just doesn't compute at
first glance. It's a complex picture. He isn't
the cartoon villain that some people on the left
think he is. And he certainly wasn't the obedient
political soldier that some on the right might
have wanted him to be. So let's rewind the tape
to understand the judge. We have to understand
where he came from. And looking at his origin
story in the source material, it seems like the
seed of his entire legal philosophy wasn't planted
in law school. It was planted at the dinner table
in Trenton, New Jersey, back in the 1930s. That's
absolutely right. Anton Scalia was born in 1936.
He was the only child of an Italian immigrant
father, Salvatore, and an Italian -American mother,
Catherine. And you really cannot overstate the
influence of his father, Salvatore. This wasn't
just a hardworking immigrant making his way in
a new land. He was a professor of romance languages,
a serious intellectual. This is where the research
gets fascinating to me. His dad subscribed to
a very specific literary theory called New Criticism.
Now, I was not an English major, so when I saw
that... term. I had to go look it up. Can you
unpack that for us? What is new criticism? It
was a huge movement in the mid -20th century,
and it's actually pretty radical in its simplicity.
New criticism argues that when you read a text,
whether it's a poem, a novel, whatever, the only
thing that matters is the words on the page.
So nothing else. Not the author's life, not the
history. Nothing else. You do not care about
the author's biography. You do not care about
the social context of the time it was written.
And most importantly, this is the absolute key.
You do not care about the author's intent. Okay,
so if I'm reading a poem by, say, Robert Frost,
and I'm confused. I shouldn't be asking what
was Frost feeling when he wrote this or what
was happening in his life that made him write
this line. Exactly. A new critic would say, I
don't care what he was feeling. I don't care
if he was sad about a breakup or angry about
politics. I care what he wrote. The meaning is
locked inside the text itself. It's objective.
If the author meant to say something else, well,
they should have written different words. That
is incredibly rigid. but I can see the light
bulb turning on here. You can draw a perfectly
straight line from that dinner table in New Jersey
to the Supreme Court bench 30, 40 years later.
It's a direct intellectual lineage. Young Nino
grows up in this household where his father is
essentially teaching him day in and day out,
ignore the intent, look at the text. Fast forward
a few decades, and Justice Scalia is standing
in front of the entire legal world saying, ignore
the legislative intent, look at the statute.
It's the foundational block of his entire worldview.
It really is. It is. He believed that words have
fixed meanings. You can't just change them because
society's feelings have changed or because it's
convenient. And he carried that rigor through
his education. He went to Xavier High School
in Manhattan, which was a Jesuit military school,
by the way. Wait, a military school in Manhattan?
That sounds like a very specific kind of intent.
It was incredibly rigorous. I mean, you're talking
about a combination of Jesuit intellectual discipline
and military order. Total str - And Scalia absolutely
thrived there. He graduated first in his class.
But the research shows he was also very self
-aware about his social standing. Right. There's
that quote from him where he says, I was never
cool. He was very honest about it. At 17, while
other kids are listening to early rock and roll
or hanging out at diners, Scalia described himself
as an arch conservative Catholic. He was doing
Greek and Latin translations for fun. He was
in the Glee Club. He was on the debate team.
He was, in his own way, building this fortress
of intellect. And that fortress just kept getting
stronger. It took him to Georgetown, where he
was a valedictorian, and then to Harvard Law,
where he graduated magna cum laude. He really
was always the smartest guy in the room, wasn't
he? He was, and he knew it. He had a confidence
in his own intellect that some people definitely
found arrogant, but others found incredibly compelling
and persuasive. So after law school, he does
this stint in private practice at a big firm,
Jones Day, and he taught law at the University
of Virginia for a bit. But his trajectory really
shifts when he gets into government service during
the Nixon and Ford administrations. Yes, the
early 70s, a pretty chaotic time in Washington.
To say the least. He serves in the Office of
Legal Counsel. And you have to remember the context
here. This is right in the aftermath of Watergate.
The executive branch is under siege. Congress
is trying to claw back power from the presidency
because they've just seen a president, Nixon.
abuse that power in a massive way. So Scalia
is basically the lawyer for the executive branch
at the exact moment everyone in town is trying
to dismantle it. Exactly. He's in the trenches.
He's testifying before committees, writing memos,
essentially telling Congress, no, you can't have
these documents. No, you can't interview these
aides. That's executive privilege. He develops
this very, very protective view of the president's
power. So he sees the executive not as the villain
of the Watergate story, but as the branch that
needs defending against an overreaching, angry
Congress. Right. And that perspective, that framework
explains so much about his later rulings on the
separation of powers. It does. It cements his
worldview. A little later, he ends up at the
University of Chicago Law School. And here's
a pivotal moment that I think flies under the
radar for most people, but it's absolutely crucial
for understanding modern America. He becomes
the very first faculty advisor to a small, brand
new student group called the Federalist Society.
Oh, wow. I know that name. The Federalist Society
is a juggernaut now. it's the titan of conservative
legal thought today i mean if you want to be
a republican judge you almost have to be a member
or at least be friendly with them but back then
It was nothing. It was just a fledgling group
of conservative students who felt completely
outnumbered and shouted down on a very liberal
campus. And Scalia was their champion. He was
their champion. He gave them a place to meet.
He debated with them. He gave them intellectual
credibility. He helped nurture this entire movement
before it was even a movement. OK, so let's fast
forward to 1986. Ronald Reagan is president.
Chief Justice Warren Burger is retiring. Reagan
decides to bump up the conservative justice William
Rehnquist to chief justice, which leaves an empty
associate justice seat on the court. And Reagan
has a choice to make. The biographical records
are really clear on this. He specifically wants
to appoint the first Italian -American justice.
That was a key demographic and political goal
for the administration. So he's looking at two
main guys, right? Antonin Scalia and Robert Bork.
That's right. Bork, a name that is now famous
for, well... for other reasons. For becoming
a verb, yeah. Getting borked. Exactly. But at
the time, Bork was older, very established, incredibly
brilliant, but he had a long, long paper trail
of controversial writings and speeches. He had
written extensively about rights he didn't think
existed in the Constitution. He was a known quantity
and a polarizing one. Scalia, on the other hand,
was younger, more energetic, and frankly, much
more charming. There's that story from his confirmation
hearing that really highlights the charm. He
had apparently played tennis against Senator
Howard Metzenbaum, who is a pretty liberal Democrat
from Ohio. Yes. And apparently Scalia won the
match. So at the hearing, with all the cameras
rolling, Scalia jokes that beating the senator
was a clear case of his integrity overcoming
his judgment. That is a risky joke to make to
one of the guys who holds your entire career
in his hands. It was, but it worked perfectly.
It got a huge laugh. It showed he wasn't just
the stiff academic. He could be witty. He could
disarm people. And as we noted at the top. 98
to 0. He takes his seat in September 1986. And
this is where he starts methodically installing
that operating system we talked about. OK, let's
get into the nuts and bolts of this operating
system. Because if you listen to any legal podcast
or read any Supreme Court news, you hear two
words constantly associated with Scalia. Textualism.
And originalism. Constantly. People often use
them interchangeably, like they mean the exact
same thing. But they don't, do they? No, they
are distinct ideas. They're related. You could
say they're cousins. They come from the same
family of thought, but they apply to different
things. It's really important to get this right.
Let's start with textualism. This usually applies
to statutory law. So laws passed by Congress.
And reading through the source material, it seems
like the big enemy for Scalia here, the thing
he was fighting against, was something called
legislative history. He absolutely, positively
loathed legislative history. He thought it was
a judicial fantasy. So paint the picture for
us. How did judges do it before Scalia really
came along and shook things up? OK, so before
Scalia, if a case came before the court involving
a law that was a little vague or ambiguous, judges
would sort of act like detectives trying to solve
a mystery. They'd say, all right, the words on
the page aren't totally clear. Let's go look
at the congressional record. And they would read
the committee reports, the floor speeches, the
transcripts of debates. They were trying to figure
out what did Congress intend to do here? What
was the spirit of the law? Which on the surface,
that sounds like a totally reasonable thing to
do. Right. You're trying to follow the will of
the legislature. It sounds reasonable, but Scalia
argued it was, and I'm quoting him here, illegitimate
and ill -advised. He believed that we are a government
of laws, not of men. Congress votes on the text
of a bill. That is the only thing that becomes
law. They do not vote on what Senator Smith said
in a speech on a Tuesday afternoon or what some
25 -year -old staffer wrote in a committee report
that no one read. So his view was basically,
read the contract, don't ask me what I was thinking
when I signed it. The words are the words. That
is a perfect analogy. He had this great line
where he said, using legislative history is like
looking over the heads of the cloud at a cocktail
party to find your friends. I love that. You
scan through thousands and thousands of pages
of documents until you find the one quote from
one congressman that supports the outcome you
want, and you just conveniently ignore all the
contradictory stuff. It's cherry picking, pure
and simple. He felt it allowed judges to just
rewrite the law to fit their own policy preferences.
He famously suggested that other justices on
the court stopped using legislative history in
their opinions because, as he put it, Scalia
was breathing down their necks. He effectively
bullied the court into looking closer at the
dictionary and less at the congressional record.
Okay, so that's textualism. Words mean what they
say in a statute. Now let's talk about its cousin,
originalism. This applies specifically to the
Constitution. Right. And it's a similar logic.
Originalism is the belief that the Constitution
means exactly what it meant to the public who
ratified it. So if we are looking at the Constitution,
we aren't asking. What would be a good policy
today? We are asking, what did these words mean
in 1791 when the Bill of Rights was ratified?
Or what did they mean in 1868 when the 14th Amendment
was ratified after the Civil War? This is the
direct opposite of the Living Constitution Theory,
which I think is what most of us were taught
in high school civics class. Correct. The Living
Constitution Theory says that our standards evolve,
so the Constitution's meaning should evolve,
too. What we considered cruel and unusual punishment
in 1791, like, you know, branding someone with
a hot iron or putting them in the stocks, is
obviously different from what we consider cool
today. The Living Constitution says the document
should mature as society matures. And Scalia's
response to that was? He said, Absolutely not.
The Constitution is not a living organism. It
is a legal document. It's a contract between
the government and the people. And contracts
don't just magically change their meaning because
time passes. He famously said he preferred a
dead Constitution. A dead Constitution. I mean,
that is such a provocative, almost jarring phrase.
He leaned into it. He loved it. His logic was
this. If you have a living constitution, who
gets to decide how it grows and changes? The
judges. Unelected judges. And if judges can update
the constitution to fit modern standards, they
are no longer interpreting law. They are just
writing their own moral preferences into the
law. He argued that if you want to update the
Constitution, there's a process for that. It's
called an amendment. You pass a law. You do the
hard work of democracy. You don't ask nine lawyers
in robes to do it for you. This leads directly
to what he called his broken clock defense, because
his critics, and there are many, they always
argue that originalism was just a fancy intellectual
cover for conservative politics. That was the
number one critique. They'd say, oh, isn't it
convenient that what the founders thought in
1791 always seems to agree with the modern Republican
Party platform? Right. The critique is that it's
impossible to truly know what everyone thought
in 1791, so originalists just go on a historical
scavenger hunt to find evidence that supports
their own biases. But Scalia's defense was, if
I was just voting for what I liked, I would be
a politician. He argued that if you are a true
honest originalist, you will sometimes vote for
things that make you personally sick to your
stomach simply because the Constitution's original
meaning demands it. He essentially said, if you
like all your own rulings, you're doing your
job wrong. Exactly. And as we move through this
deep dive, we're going to see some very, very
clear examples where his method led him to results
that he personally hated. He did not like the
outcomes. We definitely will. But first, we have
to talk about the wolf. The wolf, yes. one of
his most famous and frankly most prophetic dissents.
This is part three of our dive. His ideas on
the separation of powers. We touched on this
with his time in the Nixon administration, but
Scalia was, I mean, truly obsessed with keeping
the branches of government in their own lanes,
wasn't he? Obsessed is exactly the right word.
And for him, this wasn't some boring technical
part of constitutional law. This was the whole
thing. He believed that the Constitution's structure,
the rigid separation of powers between the legislative,
executive, and judicial branches, was actually
more important for protecting your liberty than
the Bill of Rights. Wait, really? More important
than freedom of speech? More than religious freedom?
That was his argument. He would point out that
every tin pot dictator in the world has a Bill
of Rights written down on paper somewhere. The
Soviet Union had a Bill of Rights that guaranteed
freedom of speech. But it didn't matter because
all the power was concentrated in one place.
For Scalia, the separation of powers is what
actually prevents tyranny. The structure is the
protection. Which brings us to this case, Morrison
v. Olson in 1988. This was a really big deal
at the time. It was. This was a challenge to
the independent counsel law. After Watergate,
Congress had passed this law to create a special
prosecutor who could investigate high -level
officials, including the president himself, without
fear of being fired by that president. It was
a direct response to Nixon firing the Watergate
special prosecutor, the Saturday Night Massacre.
So the Supreme Court majority looked at this
law and said, this seems fine. It's a good anti
-corruption measure. It helps with accountability.
The vote was 7 to 1 to uphold the law. And seawing
one was Antonin Scalia. He wrote a lone dissent
that was so furious, so passionate that his colleague
Justice Harry Blackmun later described it as
screaming. What was his argument? He argued that
the investigation and prosecution of crimes is
a purely executive function, period. The president
is the head of the executive branch. If Congress
creates a powerful prosecutor that the president
cannot fire or control, they are stealing executive
power for themselves. They are creating, in his
view, a fourth branch of government that is accountable
to no one. And here comes the quote that everyone
remembers from that dissent. He wrote that while
some encroachments on power come in sheep's clothing.
meaning they look harmless or obscure, he said,
This wolf comes as a wolf. This wolf comes as
a wolf. That still gives me chills. It's such
powerful writing. It was a stark warning. He
predicted that the independent counsel would
inevitably become a political weapon. He said
that because this prosecutor has no other job
and basically unlimited resources and time, they
would hound their target relentlessly until they
found something, anything to charge them with.
The incentive structure was all wrong. And if
you look at the history of the 1990s, with the
Ken Starr investigation into Bill Clinton over
the Whitewater real estate deal that morphed
into an investigation about an affair. A lot
of scholars, even liberal scholars who hated
Scalia's politics, started to say, you know what,
he might have been right about this. The office
became exactly what he predicted it would. He
was playing the long game. He wasn't looking
at, is this a good idea for this particular political
moment? He was looking at, does this break the
fundamental machinery of the Constitution? Precisely.
And he felt the same way about the line item
veto. Remember that? Congress tried to give the
president the power to cross out specific lines
of spending in a big bill without vetoing the
whole thing. The court struck it down, but Scalia
dissented there too. He argued that if Congress
hands the president a big pot of money, the president
has the discretion to spend it or not. He was,
across the board, a fierce defender of executive
power. Okay, so that's the structural stuff.
It's incredibly important, but it's not exactly
what made him a household name. Most people know
Scalia because of the culture wars. This is part
four of our outline. This is where he became
a hero to the right. and an absolute villain
to the left. This is where the friction between
his operating system and modern American society
really sparked. And again, to understand him,
you have to realize his strategy was rarely to
argue this liberal outcome is evil. His argument
was almost always the Supreme Court has no power
to decide this question. Let's start with the
biggest one, abortion. Roe v. Wade and later
Planned Parenthood v. Casey. Scalia was adamant.
He was completely consistent on this for 30 years.
He looked at the Constitution and said, I see
protections for speech. I see protections against
unreasonable searches. I do not see the word
abortion or even a general right to privacy anywhere
in this text. Therefore, under the 10th Amendment,
this is an issue left to the states to decide.
So it's crucial to understand he wasn't arguing
that the Supreme Court must ban abortion nationwide.
No, and that's a key distinction that often gets
lost. He was saying the court needs to get out
of the way. If the people of Ohio, through their
elected representatives, want to ban it, they
can. If the people of New York want to allow
it, they can. Let the voters decide in each state.
In his dissent in the Casey decision, he wrote
about the carts full of mail. Yeah, that was
a powerful image. He predicted that because the
court had snatched this incredibly divisive moral
issue away from the democratic process, they
would be forever plagued by carts full of mail
and streets full of demonstrators. He felt the
court was inviting political chaos and undermining
its own legitimacy by acting like a super legislature.
He thought all the anger in the country was because
the court had short circuited the democratic
debate. But he also had some very visceral. very
personal reactions. In the partial birth abortion
case, Stenberg v. Carhart, he compared the court's
decision to Dred Scott, the infamous slavery
case. He did. That was one of his most aggressive
and emotional dissents. He expressed genuine
personal revulsion at the specific medical procedure
involved. But even there, he framed his legal
dissent around the idea that a democratic society
should be allowed to draw moral lines and ban
something that many of its citizens consider
horrible. He was furious that the court was telling
the people of Nebraska, your moral revulsion
doesn't matter. Then we have gay rights. This
is where the language got very, very heated and
where his legacy is probably the most controversial
today. Extremely controversial. In Lawrence v.
Texas in 2003, the court struck down state laws
that criminalized sodomy. Scalia wrote a scathing
dissent. He was accused by Congressman Barney
Frank of being a homophobe. And the columnist
Maureen Dowd famously called him Archie Bunker
in a high back chair because he was defending
the right of states to ban private consensual
sexual conduct between adults. Yes. But his argument
again. was procedural and historical, he said.
For 200 years, states have had these kinds of
moral laws on the books. The Constitution hasn't
changed. So why is the court suddenly, in 2003,
discovering a new constitutional right that invalidates
them? He claimed he wasn't attacking gay people.
He was defending the state's traditional right
to set moral standards through legislation. And
then, of course, the big one. same -sex marriage,
Obergefell v. Hodges in 2015, just a year before
he died. This opinion is famous for its insults.
He was absolutely furious with the majority.
He called their reasoning mystical aphorisms
of the fortune cookie. Mystical aphorisms of
the fortune cookie. I mean, you have to admit,
even if you completely disagree with him, the
man could write a memorable insult. He was a
master of it. He viewed this decision as the
ultimate act of a judicial aristocracy. He essentially
asked, Who are these nine lawyers, unelected,
with life tenure, living inside the bubble of
Washington, D .C., to tell 300 million Americans
that their millennial -old definition of marriage
is suddenly unconstitutional? He felt it was
robbing the people of the freedom to govern themselves.
And on affirmative action, he was just as rigid,
just as absolute. He mocked the whole idea that
law schools needed diversity for educational
benefits, didn't he? Oh, he was merciless. He
said that cross -racial understanding is something
you're supposed to learn in kindergarten. not
in a constitutional law class. For him, it was
a simple, brutal textualism. The 14th Amendment
promises equal protection, and that means equal,
period. So if you stop the episode right there,
if this is all you know about him, Scalia looks
like a standard, down -the -line conservative.
He opposes abortion rights, opposes gay rights,
opposes affirmative action. But this is the deep
dive. And we promised the surprising Scalia.
This is part five. This is the unlikely ally
segment, because if you were a criminal and there
were certain times when you really wanted Antonin
Scalia on your panel. And this is where the learner
profile, the listener who thinks they have him
figured out often gets that. Aha. Moment. Let's
talk about the thermal imaging case. This one
is wild. It's called Kylo v. United States. This
is a fascinating Fourth Amendment case from 2001.
The police suspected a man was growing marijuana
in his garage using high intensity grow lamps.
They couldn't get a warrant to go inside because
they didn't have enough probable cause yet. So
they got creative. They got very creative. They
stood across the street with a high tech thermal
imaging camera and pointed it at his house. They
saw a bunch of heat radiating from the roof of
the garage, which implied. grow lamps. They then
used that thermal scan as their evidence to get
a warrant. Usually you'd expect a conservative
law and order judge to say, great police work.
You caught the bad guys. What's the problem?
Exactly. The government's argument was we didn't
even touch the house. We just looked at the waste
heat coming off of it. But not Scalia. He wrote
the majority opinion against the police. He argued
that the home is your castle. That is a core
concept that goes back to English common law
way before the Constitution. So he's going back
to the original understanding. He's going back
to the original understanding of what search
meant. He said that using high -tech gear that
isn't in general public use to peep inside the
walls of a home to learn details you couldn't
otherwise know without physically entering, that
is a search. And it requires a warrant. That
is originalism in action, right? Taking an 18th
century concept of a castle and applying it to
21st century thermal sensors. Yeah, precisely.
He reasoned. The founders wanted to protect the
privacy of the home from the government. Just
because the police have new, fancy toys doesn't
mean that fundamental protection disappears.
He wrote, And he did the same thing with the
Sixth Amendment, the right to confront your accuser.
The confrontation clause, oh, Scalia was an absolute
hawk on this. He was probably the strongest defender
of this right on the court in a century. There's
a case called Melendez -Diaz. Prosecutors wanted
to convict a drug dealer. To prove the substance
was drugs, they just submitted a lab report from
a state chemist saying, this white powder is
cocaine. Which is how it's done in thousands
of cases a day. It's efficient. It's efficient.
The government argued that dragging the lab technician
into court to testify in every single case would
be expensive and time consuming. And Scalia said.
What did he say? He said, essentially, too bad.
He wrote the opinion saying the Constitution
gives you the right to confront the witnesses
against you. A piece of paper, a lab report is
a witness. You have the right to drag that lab
tech into court, put them on the witness stand
and cross -examine them. Ask them, did you calibrate
the machine correctly that day? Were you tired?
Did you mix up the samples? He didn't care if
it made the prosecutor's job harder or more expensive.
He didn't care at all. He believed the text of
the Constitution guaranteed that right. He even
voted to strike down laws allowing child abuse
victims to testify via video or behind a screen.
He said the Constitution guarantees a face to
face confrontation, even if it's traumatic for
the victim. The text is the text and the right
is absolute. And then the ultimate surprising
Scalia moment, the one that broke everyone's
brains. Flag burning. Texas v. Johnson. A man
burns an American flag at a protest. Scalia the
patriot, the traditionalist, the guy who talks
about civic virtue. He is the deciding vote to
strike down the ban on flag burning. It's just,
it's still shocking to think about why. What
was his reasoning? The First Amendment. Congress
shall make no law abridging the freedom of speech.
He absolutely hated the act of flag burning.
He called it reprehensible. He famously said
in an interview, if he were king, he would put
every last flag burner in jail. But he wasn't
king. He was a judge. And the judge has to follow
the law. The judge has to follow the text. He
argued that burning a flag is a form of symbolic
speech. It's an expression of an idea, even if
it's an ugly idea. And if you allow the government
to ban speech just because it's offensive or
makes people angry, then the First Amendment
means nothing at all. This connects directly
back to that broken clock defense we talked about.
He personally. deeply hated the result, but he
followed his operating system to its logical
conclusion. It is the single strongest piece
of evidence that he wasn't just a political hack.
When the text in the original meaning led him
to a liberal outcome, he followed the text. Okay,
part six. We absolutely have to talk about guns.
District of Columbia v. Heller in 2008. This
is often called Scalia's magnum opus, his masterpiece.
Before this case, it was genuinely unclear. Legally
speaking, whether the Second Amendment protected
an individual's right to own a gun for self -defense
or just a state's right to have a well -regulated
militia like the National Guard. The text of
the amendment is kind of famously confusing,
right? It's very awkwardly phrased. Scalia did
a deep, deep dive into the grammar. He went full
English professor on it. He analyzed the sentence
structure. The amendment has what he called a
prefatory clause, a well -regulated militia being
necessary to the security of a free state. And
then an operative clause, the right of the people
to keep and bear arms shall not be infringed.
And the debate for 200 years was. does the first
part, the militia part, limit or define the second
part, the right to bear arms part. Exactly. And
Scalia, doing his originalist analysis, looked
at how the word militia was used in dictionaries
and documents from the 18th century. He concluded
that militia didn't just mean a formal military
unit. It essentially meant the body of all able
-bodied citizens, the people themselves. So his
conclusion was that the right belongs to the
individual. Yes. He concluded that the operative
clause grants an individual right, and the prefatory
clause just explains one of the reasons why that
right is important. Therefore, the right to keep
and bear arms belongs to the individual for purposes
like self -defense in the home. And this ruling
fundamentally changed gun laws in America. It
struck down Washington, D .C.'s very strict handgun
ban. A total sea change. But we should be fair
here. Not everyone bought the history lesson.
We should mention Judge Richard Posner, who was
a very famous conservative judge and intellectual
in his own right. He absolutely roasted Scalia's
opinion in Heller. What was his criticism? He
called it faux originalism. He called it putting
a historicizing glaze over personal policy preferences.
He basically argued that the historical record
is messy and contradictory and that Scalia just
dug through history until he found the evidence
that supported the outcome he already wanted
and ignored the rest. So that is the constant
tension with originalism. Is it objective history
or is it just a scavenger hunt for your preferred
outcome? That's the billion dollar question.
But regardless of what you think of the method,
Heller is the law of the land and it is pure,
unadulterated Scalia. Let's shift gears a little
bit and talk about the man himself. Part seven,
the personality. Because by all accounts, you
could not ignore him when he was in the courtroom.
He completely changed the dynamic of oral arguments
at the Supreme Court. Before Scalia, arguments
were often polite, sometimes even sleepy affairs.
Lawyers would get up and read prepared speeches.
Scalia turned them into a graduate seminar slash
debate club. He asked more questions, he interrupted
more often, and he caused more laughter than
any other justice. Legal writer Delia Lithwick
had a great quote about this. She said he entered
the court like a medieval knight girded for battle.
He loved the combat of ideas. He thrived on it.
And his writing style reflected that. He didn't
write to build a consensus or to compromise.
Most justices write their opinions to try and
get four other colleagues to sign on. So they
soften the language. They make it a bit bland.
Scalia wrote to persuade future generations.
He wrote for the law students 50 years from now.
And he wrote those famous internal memos, the
Nina Grams. The Nina Grams. He would fire off
these sharp, witty, sometimes incredibly biting
memos to his colleagues to pressure them or critique
their draft opinions. He was just a constant
force of intellectual personality. But he wasn't
just a grump in a robe. He had a very famous,
and to many, a very surprising best friend on
the court. Justice Ruth Bader Ginsburg, the liberal
icon. The notorious RBG herself. They were, by
all accounts, best friends. Their family spent
New Year's Eve's together every year. There are
famous pictures of them riding an elephant together
in India. They even appeared as extras in an
opera together, Ariadne of Naxos. That is such
a great image. The arch conservative originalist
and the liberal lioness in full costume on stage
at the opera. It teaches a lesson that we seem
to have completely lost in our public life today,
that you can disagree fundamentally on the most
important issues of law and the Constitution
and still respect, admire and even love the other
person. Scalia once said, if you can't disagree
ardently with your colleagues without personally
disliking them, you are probably in the wrong
business. He also, and this is a fun detail from
the source material, admitted he didn't read
The New York Times or The Washington Post. He
called the Post shrilly liberal. He preferred
talk radio and the Wall Street Journal. He definitely
lived in his own intellectual ecosystem. But
because he engaged so directly and personally
with people like Ginsburg, he was never intellectually
isolated. He was always sharpening his blade
against the best possible opposition. So we come
to part eight, the end of the story, February
2016. It was a huge shock to the country. He
was at a place called the Cibolo Creek Ranch
in West Texas for a quail hunting trip. He was
79, but he was still this larger -than -life
force. Everyone just assumed he'd be on the court
forever. And the immediate aftermath of the reporting
on the scene was chaotic. A bit chaotic, yeah.
The ranch owner, John Poindexter, found him in
his room. He had passed away in his sleep. But
the details that came out in the first 24 hours
were confusing. A local judge pronounced him
dead over the phone without ever seeing the body.
There was no autopsy ordered immediately. And
there was a pillow report that went everywhere.
Right. The initial report that got out to the
media said there was a pillow over his face.
And that, of course, instantly triggered massive
conspiracy theories. Was he murdered? Was it
a political assassination? But the reality was
likely less sinister. The ranch owner later clarified
that the pillow was between his head and the
headboard, as if propping him up. And his family
was very clear. Look, he had a bad heart. He
was overweight. He was 79. It was natural causes.
They emphatically rejected the conspiracies.
But the political earthquake that followed was
very, very real. Massive. Unprecedented in modern
history. He died in a presidential election year.
President Obama nominated a well -respected moderate
judge, Merrick Garland, to replace him. But Senate
Republicans, led by Mitch McConnell, did something
that had never been done before. They refused
to even hold a hearing. They just said no. They
just said no. They said, this is an election
year. The American people are about to vote.
Let the voters decide who should pick the next
justice. ironically, a very Scalia -esque argument
in a way, let the people decide. In a weird,
purely political way, yes. So the seat remained
empty for over a year, which was just unheard
of, until Donald Trump won the election and appointed
Neil Gorsuch. Who is very much seen as a Scalia
heir. He is. Gorsuch and later Justice Kavanaugh
are seen as the intellectual children of Scalia.
They speak his language. They use his methods.
Which brings us to The Legacy, Part 9. We started
this whole deep dive by asking about the operating
system. Did he succeed in installing it? The
short answer is an unqualified yes. He completely
transformed the terms of legal debate in America.
Before Scalia, looking at legislative intent
and the spirit of the law was standard practice.
Today, even liberal justices start their analysis
with the text. There's that incredible quote
from Justice Elena Kagan. Justice Kagan, a liberal
appointed by President Obama, famously said in
a speech, we are all textualists now. And the
liberal legal scholar Ronald Dworkin said something
similar. We are all originalists now. Scalia
completely changed the rules of the game. Even
if you disagree with his conclusions, you are
forced to argue on his turf. You have to talk
about the text. You have to talk about history.
You can't just talk about what would be a good
social policy. Harvard Law School, a bastion
of liberalism, named a professorship after him.
George Mason University renamed their entire
law school after him. And Neil Gorsuch, in a
tribute after he took Scalia's seat, praised
Scalia's intellectual humility. He noted that
later in his life, Scalia was even willing to
reconsider some of his own previous work, like
the doctrine of Chevron deference, because he
came to believe it didn't align with the constitutional
text. He was loyal to the method above all else,
even his own past opinions. So let's wrap this
up. We have a man who believed the devil was
a real person, but went duck hunting with his
liberal colleagues. A judge who armed gun owners,
but freed flag burners. He was a paradox, but
he was a consistent paradox. He was faithful
to his method, to his text, regardless of where
it led him politically. And here is the final
thought I want to leave you with, a thing to
chew on. Scalia often said he preferred a dead
constitution because a dead one protects you.
It's stable. If the Constitution is alive, it
can morph and change. And if it can morph, it
can be changed by five unelected lawyers to take
away your rights just as easily as they can be
changed to grant them. A dead contract is a stable,
predictable contract. But the counter argument,
of course, is that a dead constitution cannot
breathe. It can't adapt to a world of thermal
imagers, internet surveillance, artificial intelligence,
and all the modern complexities the founders
could never have dreamed of. So the question
for you, the listener, is this. In a world that
is changing as fast as ours, is a dead set of
rules a safety anchor that keeps us from drifting
into the tyranny of the moment? Or is it a set
of shackles that keeps us bound to the assumptions
and limitations of the 18th century? That is
the fundamental question Scalia forced us all
to ask, and we are still struggling to answer
it today. If you want to dive deeper into his
thinking, check the show notes. We've linked
to some of his ninograms and a few of those blistering
dissents. They are worth a read just for the
vocabulary. Thanks for listening to the Deep
Dive. We'll see you next time.