Whether writing for the majority or in dissent, Scalia usually elicited strong reactions. It appears that is no different in death than in life. Thus, the Twitter storm among some on the Left looks almost as if they’re dancing on his grave even before he’s buried. And of course some on the Right so recoil from the prospect that President Obama might get to replace Scalia that they speak as if the Apocalypse were at hand. But such extremes are only to be expected; Scalia himself took delight in skewering opponents with just the right word or phrase.
Thus, dissenting in Lawrence v. Texas (2003), which overturned state laws criminalizing sodomy, Scalia wrote scathingly of a famous sentence written by Justice Casey in Planned Parenthood v. Casey (1992), which upheld the legal right to abortion:
“…if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (“ ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ ”): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.”
Political passions aside, however, Scalia was a Catholic who seems to have taken Christian injunctions to behavioral charity quite seriously. A personal anecdote from Jeffrey Tucker of the Foundation for Economic Education, who also writes extensively on Catholic subjects, presents a striking picture of that. I recommend it to opponents and admirers alike.
The debate about replacing Scalia has of course already begun. Senate Majority Leader Mitch McConnell (R, Kentucky) has stated: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” Hillary Clinton and Bernie Sanders, as well as President Obama and Minority Leader Harry Reid, have already denounced that stance. The outcome of this confrontation could be consequential indeed.