The Tragedy of Justice Scalia

THE TRAGEDY OF JUSTICE SCALIA A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW. By Antonin Scalia. Princeton and Chichester: Princeton University Press. 1997. Pp. xiii, 149. $18.95.INTRODUCTIONJustice Antonin Scalia died last February, at the age of seventy-nine. Having served nearly three decades on the Supreme Court, he was, by the time of his death, its best known and most influential member, the subject of two substantial biographies,1 hundreds of academic articles,2 and possibly thousands more in the popular press. If the most visible and vocal justice of the past quarter century, Scalia was also the most polarizing-the judicial equivalent of stinky cheese.3Given the magnitude of Scalia's renown and the intensity of the passions he has engendered, it would be folly to advance in this space any bold new thesis on his jurisprudence or judicial legacy. My ambitions, accordingly, are less grand. They are to offer an account of his central jurisprudential claims, the arguments he marshaled, and the difficulties they encountered, in a fashion that might enable partisans on both sides of today's legal, cultural, and political divides to see a little more clearly at least some of what their opponents see-the other side of Scalia's legacy. I will try to accomplish that task by concentrating on his Tanner Lectures delivered at Princeton two decades ago and published, complete with scholarly comments and his response, as A Matter of Interpretation: Federal Courts and the Law. You might say that my modest goal for this twenty-year retrospective on Scalia's best-known and most important book is to render Justice Scalia two-dimensional.Because I will try to make a case both for what was truly great and for what was profoundly flawed about Scalia the jurist, the account that follows depicts him as a tragic figure. That is not a novel characterization.4 But it remains disappointingly marginal. Too often, Scalia's critics demonize him as a simple villain,5 while his acolytes glorify him as a paladin without warts.6 These are disturbingly partial visions. Commentators who remain blind to the truths that others see vividly will never adequately understand the complex legacy of this complex man.But that is not all. Although tragedies and tragic figures abound in life, tragedy's natural home is in the theater. Tragedies are performed for an audience. And the power, value, and meaning of tragedy "lies in its capacity to elicit the audience's response."7 Now, precisely how tragedy should affect an audience, or precisely what the audience is supposed to learn, is controversial. If theorists of tragedy agree on anything, it's that, while a concept of tragedy has been vital in Western culture since ancient Greece, its content, assumed functions, and associated norms, have varied across time and place.8 Still, there are lessons we can learn-not only about him, but also about our own condition-by understanding Scalia in tragic terms. Or so I hope to show.I. SCALIA'S ARGUMENTA Matter of Interpretation is a short book. Scalia's own contributions to it are shorter still. His initial text runs only forty-five pages (pp. 3-47), and his response to four distinguished commenters (historian Gordon Wood, philosopher of law Ronald Dworkin, and legal scholars Mary Ann Glendon and Laurence Tribe) adds another twenty (pp. 129-49). Consistent with its brevity, Scalia's arguments are straightforward. They contain both critical and constructive elements.Let's take the critical component first. Judges, Scalia insists, should have a theory of what they are doing and ought to be doing when interpreting authoritative legal texts. But, by and large, the American judiciary lacks any such theory. The "science of construing legal texts" has fallen into neglect (p. 3). That is sad."Even sadder," he adds, "is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory" (p. …