Antonin Scalia, 1936–2016 On the passing of Justice Antonin Scalia.
In his 2003 book Coercing Justice: The Worldwide Rule of Judges, Robert Bork notes how frequently the institution of the law is overlooked in discussions of cultural warfare. This lacuna is a weakness, Bork points out, for law “is a key element of every Western nation’s culture, particularly as we turn more to litigation than to moral consensus as the means of determining social control. Law is also more crucial today,” he continues, “because courts have become more overtly cultural and political as well as legal institutions.”
We thought of Judge Bork’s observations when we got the sad news of Justice Antonin Scalia’s unexpected death, at age seventy-nine, last month. For nearly thirty years—he had been appointed to the Court in September 1986 by Ronald Reagan—Antonin Scalia was a tireless advocate of judicial restraint, the idea that the primary function of the judiciary is to interpret the law, not to make it. He set himself staunchly against the trends Bork outlined, resisting both the politicization of the Court and the more amorphous but no less corrosive tendency to substitute litigation for those more gentlemanly modes of encouraging good behavior—habit, taste, manners, convention—what Bork summarized as “moral consensus” and the British jurist John Fletcher Moulton called “obedience to the unenforceable.”