Sunday

October 22nd, 2017

Insight

Suddenly, a silence

Paul Greenberg

By Paul Greenberg

Published Feb. 17, 2016

As always, the man -- and the justice of the Supreme Court of the United States -- confounded and astonished, dismayed and delighted even as he took his abrupt leave over the weekend. How even begin to describe the indescribable, constant and changeable Antonin Scalia? He was the court's great dissenter and disturber of the peace over the decades he served on it. He could be both scholarly theorist (he called his theory Originalism, or doing what the Founding Fathers surely intended in their time) and agitator extraordinaire as he took on all comers, always looking for trouble even if he had to start it.

Antonin Scalia and Richard Arnold, the greatest American judge never to have sat on the Supreme Court of the United States, made a fitting pair of bookends -- so different in style, so alike in their dedication to the civil liberties of the American people. Yet they were fast friends, exchanging dueling quips about the superiority of Yale or Harvard Law. Concise as Scalia was verbose, Arnold would naturally be first in his class at both. His background in the classics doubtless helped. If memory serves, and sometimes it doesn't, he wrote the class poem -- in Latin.

But how sum up Antonin Scalia's contribution to constitutional law? Let's just say that whenever an appellate judge or legal scholar wants to ornament an opinion, he'll be using a quotation from the ever quotable Justice Scalia.

Few justices of the Supreme Court of the United States have so enjoyed being justices of the Supreme Court of the United States, which is always a bad sign -- for power is to be feared, not relished, especially in one's own hands. Justice Scalia staged public debates with his ideological rival, the Hon. Stephen Breyer -- an unedifying spectacle that detracted from both the dignity and confidentiality of the court's deliberations. No one is denying that the Hon. Antonin Scalia was a great showman; the question is whether justice should be a show, let alone an operatic performance.


What a contrast Justice Scalia has made with his colleague Clarence Thomas on the court, its Quiet Man, who's been known to sit through entire sessions without saying a single word. Justice Thomas has given American law consistency and content, depth and dependability as opposed to Antonin Scalia's never-ceasing quips, entertaining as they have been. They've made a complementary pair, Justices Scalia and Thomas. Such a combination is not likely to be seen again in our lifetimes -- or anybody else's.

To go from the sublime to the superficial: the confirmation hearings for Justice Scalia's successor. Or maybe not, since the Democrats will be eager for the president to appoint the next member of the highest court in the land while the Republicans will do everything in their power or beyond it to see that the next president -- a member of their party, they hope -- will get to appoint him or her. That is, stall, delay, distract and anything else they can think of.

So here comes the next act in that continuing show, struggle and drama known as American constitutional law. Fasten your seat belts.

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Paul Greenberg is the Pulitzer-winning editorial page editor of the Arkansas Democrat-Gazette.

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