Glenn Harlan Reynolds

Justice Antonin Scalia is dead, and his death looks likely to set off partisan fireworks, with Senate Majority Leader Mitch McConnell saying that Scalia’s seat should be filled not by the lame-duck Barack Obama, but by America’s next president, whoever that turns out to be.

It wouldn’t be the first time that happened. In 1968, Republicans filibustered Abe Fortas, President Lyndon Johnson’s pick for chief justice to replace Earl Warren, until after the election, allowing Richard Nixon to choose Warren’s successor. And the GOP was in the minority then. As Josh Blackman notes, only once in the 20th century was a justice nominated by a president of one party confirmed by a Senate of the other party in an election year.

One might think that all this politicking in the wake of a great jurist’s death would be unseemly, but in Scalia’s case, I think it is perhaps fitting. It was a characteristic of his jurisprudence that he favored clear rules for running the government, but that he believed the Constitution should leave as many substantive decisions as possible to politics and the elected branches.

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That’s a point I stress in teaching two leading cases in my own Constitutional Law classes, where I agree with the majority but nonetheless find Scalia’s dissents worthy of special attention. Lawrence v. Texas, the case in which the Supreme Court — reversing its own relatively recent decision in Bowers v. Hardwick — found that laws against homosexual sex violate the Constitution, Scalia observed: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”

Though I would not have stopped where Scalia did — I think that laws regulating sexual behavior that doesn’t harm anyone are beyond the legitimate power of any democratic government — his point about the difference between legislators and judges is an important one. Judges have to give reasons for what they do, and those reasons get built on in future cases. Legislators do not, and can stop wherever it suits them. At least, unless judges get involved.

Even more striking were his words in United States v. Virginia, which overturned single-sex education at the Virginia Military Institute: “Much of the court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.

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"So to counterbalance the court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law-trained elite) into our Basic Law."

Every year, that passage has seemed more relevant to me, perhaps because we live in an age in which those “smug assurances” seem especially smug. As we remember Justice Scalia’s time, let us remember that every age’s smug certainties come to an end eventually, and that the dissents of Supreme Court justices often turn out to be prophetic.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.

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