(photo credit: REUTERS)
Antonin Scalia, who died on Saturday, was not the first modern thinker or US Supreme Court justice to articulate the modern conservative agenda that eventually took over the court after decades of being ruled by progressives.
But in a wide range of areas, particularly foreign policy, and including the June ruling about writing “Jerusalem” on US passports of Americans born in Israel, Scalia became the banner behind which conservatives rallied.
Some of that came from his being respected by even his harshest detractors as a preeminent legal mind, and some of that came from his biting sarcasm that matched up well with how angry conservatives were at decades of progressive rule.
His most memorable recent quote saw him taking the Supreme Court majority to task for its legal reasoning on the passport issue. He said its interpretation that putting the word “Jerusalem” on individual passport documents was tantamount to recognition of Israeli claims over the city was a logical “leap worthy of the Mad Hatter.”
Though Scalia was never chief justice, far more than the chief justices he served with, William Rehnquist and John Roberts, he will likely be remembered as the most influential conservative justice of his era, akin to William Brennan for liberals.
Unlike Rehnquist and Roberts who were less ideological, but simply generally conservative in their policy views, Scalia espoused a fully thought out “originalist” ideology that looks to return society back to the US Constitution through the lens of its framers’ 18th-century intentions. It is this system of ideology that took over the American conservative movement and became its answer to questions of modernity in place of the liberal ideology of the Constitution as a living and developing document often requiring breaking with traditions of the past.
This approach was nowhere as consistent as in the area of foreign policy.
Regarding executive authority, Scalia defended various inherent powers of the president, including a broad discretionary authority in the area of foreign affairs against congressional attempts to limit it.
He largely rejected international law as having all but the most limited impact on US domestic law, a major departure from the trend on the Supreme Court until he arrived on the bench that sought to further integrate international law.
This conservative trend is often espoused by the Likud party and others on the Right in Israel, along with former Supreme Court president Asher D. Grunis, with the Left and former court president Aharon Barak pressing for greater integration.
In one decision, Scalia wrote, “We don’t have the same moral and legal framework as the rest of the world, and never have.”
He was ever ready to ignore International Court of Justice rulings about delaying certain executions of foreign citizens who were not advised of their rights as foreigners.
While the Israeli High Court of Justice has given far more credence to the ICJ, it has ignored it at times, such as regarding ruling on the legality of the West Bank barrier and settlements.
Scalia was almost always more concerned about national security than violating individual liberties, such as on whether detainees at Guantanamo Bay or detainees captured while with Taliban forces in Afghanistan have a constitutional right to go to federal court to challenge their continued detention. Justice Scalia warned in a famous dissent that giving the detainees access to judicial review “will almost certainly cause more Americans to be killed.”
Here, Israel’s legal establishment is less conservative than Scalia, but also far closer to him in giving weight to national security over civil liberties than in many Western countries.
Overall, Scalia’s judicial philosophy was not identical with Israeli conservatism, but his arguing for it has supported Israeli conservatism and sometimes put Israeli conservatives in a position where they could point to someone who was more conservative than they.