The arc of con­ser­vatism’s decline was traced in the course of a few hours last Sat­ur­day. That after­noon we learned of the pass­ing of a gen­uine con­sti­tu­tion­al con­ser­v­a­tive, Antonin Scalia. Hours lat­er, we endured anoth­er GOP debate dur­ing which pro­fessed con­ser­v­a­tives trad­ed barbs and insults, now con­sid­ered a suit­able sub­sti­tute for char­ac­ter and sub­stance by a large swath of Repub­li­can voters.

Scalia had all of Don­ald Trump’s bite and pith, but his cut­ting remarks car­ried intel­lec­tu­al force.  Scali­a’s wit was the mark of an acute intel­li­gence; Trump’s is a nox­ious vapor.

Scalia was acer­bic in pur­suit of a high-mind­ed pur­pose: to restrain the pow­er of the Court on which he sat. Judges, he argued, should inter­pret laws, not make or rewrite them, even – per­haps espe­cial­ly – to advance their own pol­i­cy aims.

His insis­tence that judges are not law­mak­ers placed him at odds with the pre­vail­ing cul­ture on the bench and in acad­e­mia.  He called out his col­leagues when they slipped their con­sti­tu­tion­al leash.  When the Supreme Court last year decid­ed to make Oba­macare sub­si­dies avail­able in states that had not estab­lished exchanges, Scalia accused the major­i­ty of rewrit­ing the law.  In a rebuke almost cer­tain­ly aimed at Chief Jus­tice Roberts, who wrote the opin­ion, Scalia said, “We should start call­ing this SCOTUScare.”

He was relent­less­ly con­sis­tent in demand­ing that pol­i­cy on a broad range of hot-but­ton issues be made by leg­is­la­tures elect­ed by the peo­ple, not by a clois­tered judi­cial elite.  “There is some­thing to be said for pop­u­lar abo­li­tion of the death penal­ty,” he wrote.  “There is noth­ing to be said for its incre­men­tal abo­li­tion by this Court.”

For Scalia, it was essen­tial that issues be decid­ed in the con­sti­tu­tion­al­ly appro­pri­ate venue. His dis­sent to last year’s Oberge­fell deci­sion requir­ing all states to license same-sex mar­riages did­n’t lec­ture us on the pro­pri­ety of such unions.  “It is not of spe­cial impor­tance to me what the law says about mar­riage,” he wrote.  “It is of over­whelm­ing impor­tance, how­ev­er, who it is that rules me…Today’s decree says that my Ruler, and the Ruler of 320 mil­lion Amer­i­cans coast-to-coast, is a major­i­ty of the nine lawyers on the Supreme Court.”

His dis­sent was with­er­ing and per­son­al.  The rul­ing, he wrote, was a “judi­cial Putsch,” a sub­ver­sion of con­sti­tu­tion­al democ­ra­cy.  “To allow the pol­i­cy ques­tion of same-sex mar­riage to be con­sid­ered and resolved by a select, patri­cian, high­ly unrep­re­sen­ta­tive pan­el of nine is to vio­late a prin­ci­ple even more fun­da­men­tal than no tax­a­tion with­out rep­re­sen­ta­tion: no social trans­for­ma­tion with­out representation.”

His words no doubt offend­ed not only his col­leagues, but those who cel­e­brat­ed Obergefell’s result.  That offense was entire­ly inten­tion­al.  For Scalia, Oberge­fell was a judi­cial mon­stros­i­ty because it imposed the desired pol­i­cy of five judges on the coun­try at the expense of the con­sti­tu­tion­al order.  That, for Scalia, is the worst offense a jurist could commit.

“Very often,” he said, “if you’re a good judge, you don’t real­ly like the result you’re reaching.”

Scalia prac­ticed what he preached, rul­ing against his own pref­er­ences on mat­ters as diverse as flag-burn­ing, parental pre­rog­a­tives, the rights of defen­dants, reli­gious free­dom, and tort reform.  For Scalia, the end nev­er jus­ti­fied the means.  Self-restraint — fideli­ty to con­sti­tu­tion­al jurispru­dence even if it pro­duced some­thing oth­er than the desired result — was a judge’s fore­most duty.

Self-restraint was lit­tle in evi­dence dur­ing Sat­ur­day night’s debate.  Sen­a­tor Mar­co Rubio (R‑FL) charged that his col­league Ted Cruz (R‑TX) “has been telling lies.”  Don­ald Trump called Jeb Bush “weak” and “laugh­able,” alleg­ing that the for­mer Flori­da Gov­er­nor had threat­ened “to take his pants off and moon everybody.”

On the crit­i­cal issue of Supreme Court appoint­ments, Trump and Cruz offered view­ers this school­yard exchange:

TRUMP: Why do you lie?

CRUZ: You need to learn to not inter­rupt people.

TRUMP: Why do you lie?

CRUZ: Don­ald, adults learn…

TRUMP: You pushed him.

CRUZ: Adults learn not to inter­rupt people.

TRUMP: Yeah, yeah, I know, you’re an adult.

 

Such infan­til­ism, with its dis­dain for social con­ven­tion and pro­pri­ety, is now con­sid­ered the mark of an authen­tic con­ser­v­a­tive leader.  Its apol­o­gists argue that the Repub­li­can estab­lish­ment invit­ed this bad behav­ior by fail­ing to “stop Oba­ma” after gain­ing House and Sen­ate seats in the 2010 and 2014 elections.

But as Jus­tice Scalia might have explained, the Con­sti­tu­tion does not give Con­gress author­i­ty to uni­lat­er­al­ly “stop Oba­ma.”  Laws require either the President’s sig­na­ture or the votes of 2/3 of Rep­re­sen­ta­tives and Sen­a­tors to over­ride his objec­tions.  Con­gress can block a President’s leg­isla­tive ini­tia­tives, and the Repub­li­can Con­gress has repeat­ed­ly done so.  It can­not, how­ev­er, pre­vent exec­u­tive overreach.

Just as there is no cure (short of con­sti­tu­tion­al amend­ment) for a judi­cia­ry run amok, Con­gress has no rem­e­dy for uncon­sti­tu­tion­al exec­u­tive actions.  Only the courts have such pow­er.  Judges who are con­sti­tu­tion­al con­ser­v­a­tives – or who, at least, have some respect for the lim­its the Con­sti­tu­tion places on the exec­u­tive branch – can police such lim­its.  And to some extent they have, so far block­ing Pres­i­dent Obama’s law­less orders on immi­gra­tion and the envi­ron­ment, while refus­ing the Admin­is­tra­tion’s request to quash a law­suit brought by the House of Rep­re­sen­ta­tives against Obamacare.

Like Scali­a’s judi­cial col­leagues, many Repub­li­can – and Demo­c­ra­t­ic – vot­ers have lit­tle patience for the con­sti­tu­tion­al order that he spent a life­time defend­ing.  It moves too slow­ly, it is too con­strain­ing, it too often requires con­sen­sus and com­pro­mise.  We want what we want and we want it now, whether it is con­fis­cat­ing the wealth of suc­cess­ful indi­vid­u­als in pur­suit of some imag­ined utopia or foist­ing unpop­u­lar poli­cies on an unwill­ing electorate.

Jus­tice Scalia devot­ed his career to com­bat­ing such impa­tience.  His con­ser­vatism, so reviled by his lib­er­al crit­ics, is today out of step with many on the Right.

His loss is great­ly to be mourned.