An adieu to Scalia, the man with the cutting – and politicised – tongue

The legal and political worlds were in shock this past weekend following the news that US Supreme Court Justice Antonin Scalia had been found dead at the age of 79. Thanks to the wonders of social media, his passing quickly became one of the most politicised deaths in living memory, as political figures on both sides of the US’s partisan divide scrambled to pay homage to one of their nation’s leading jurists as well as warn of the dangers his lost jurisprudence may have on democratic freedoms.

What the ‘Notorious RBG’ – Supreme Court Justice Ruth Bader Ginsburg, for the uninitiated – was to liberal lawyers and voters, Scalia was to those of a more libertarian or conservative nature. A fierce defender of the US Constitution, which he once described as an ‘enduring’ rather than a ‘living’ document, Scalia has received posthumous acclaimfor the literary flair of his judgmentsthatcombined a unique use of language, metaphor, and sarcasm aimed at derailing his opponents’ arguments.

Scalia’s rulings and out-of-court remarks were often highly controversialand couched in political rhetoric and religious undertonesthat clashed with other members of the court. The first Italian American to serve on the high court supported business interests, was a strong advocate for the death penalty, and routinely ruled against gay rights. In 2003, the Roman Catholic justice accepted that a Texan ‘anti-sodomy law’ did impose constraints on individual liberty, but argued that: ‘So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.’

Dissenting in Obergefell v Hodges– 2015’s landmark ruling that guaranteed the right to same-sex marriage– the judicial titan described the majority decision as a ‘threat to American democracy’: ‘Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.’

The passing of any justice is a seminal moment in US history. The reality that the court’s make-up may be about to change – perhaps for a generation– has not been lost on observers of all persuasions. Republican presidential hopefuls have been falling over themselves to demand the US Senate delay confirming Barack Obama’s nomination so that the next president – one of them, they hope – can preserve the court’s 5-4 conservative line-up at a time when the death penalty, gay rights, gun control, and abortion remain high on the political agenda.

Comparing the US and UK courts is a bit like comparing apples and oranges, yet the death of Scalia is a reminder of just how un-politicised our judges are, despite some recent protestationsto the contrary from the government. Just like ‘compensation culture’, the US does ‘judicial politics’ bigger and better than us. It is hard to imagine the death a UK justice creating as much brouhahaas Scalia’s has.

While the US court creates headline news with almost every ruling it hands down, its equal in London enjoys a somewhat quieter existence. From Sonia Sotomayor to Clarence Thomas, US justices are house-hold names. By contrast, the average Brit would be hard pressed to name Neuberger, Hale, or Sumption off the top of their head. Arguably that is to the credit of the court and its justices.

Yes, it is not perfect. It is still too white, too male, too Oxbridge, and its judges occasionally say the dumbest of things. But, unlike its Washington counterpart, the UK Supreme Court is far from politically charged. Our judges may, on occasion, make a well-timed, back-handed swipeat government policy, but I can't remember ever reading a UK ruling that contained as much bite as Scalia’s.

It is important that a nation’s most complex legal questions are resolved by experienced judges promoted to the bench on merit, rather than along ideological lines that fit the philosophical belief of the sitting premier. Ours is an example the New World could learn from. Whether it will remains to be seen.

John van der Luit-Drummond is deputy editor for Solicitors Journal john.vanderluit@solicitorsjournal.co.uk | @JvdLD