At first glance, it's hard to fault Senator Ted Cruz and his supporters for arguing that the Republican presidential candidate from Texas is a natural heir to Antonin Scalia, the conservative Supreme Court Justice who died over the weekend.
Cruz is the son of an immigrant from Cuba; Scalia was the son of an immigrant from Italy.
Cruz was a champion debater at Princeton; Scalia was a champion debater at Georgetown.
Scalia graduated from Harvard Law School, where he was an editor of the Harvard Law Review; Cruz graduated from Harvard Law School, where he was an editor of the Harvard Law Review.
Scalia worked as a lawyer at a private law firm, as a government lawyer in the Nixon administration, and as a professor at the University of Virginia. Cruz worked at a lawyer at a private law firm, as a government lawyer in the George W. Bush administration, and taught at the University of Texas law school.
Cruz was involved in the Federalist Society, a conservative legal group; Scalia was a faculty adviser to the Federalist Society chapter at the University of Chicago.
Cruz consistently names Scalia as one of the justices he most admires and as a model for his own prospective presidential nominations to the high court.
Yet on a subtle but important point of abortion law, there's a clear and significant difference between the positions of Scalia and Cruz. It's a point that may be lost on the left, which disdains both men as anti-choice extremists; or in some precincts on the right, which lionizes both men as conservative, pro-life heroes. But it's a point worth mentioning nonetheless because it says something telling about both Cruz and Scalia — something worth thinking about as we memorialize Scalia and consider Cruz as a possible president.
The point concerns what anti-abortion groups call "personhood" — the idea that an embryo or a fetus qualifies as a person for the purpose of winning the equal protection under the law of the 14th Amendment of the Constitution or the due process protection of life and liberty in the Fifth Amendment of the Constitution.
In a 2008 interview with Leslie Stahl for CBS News' "60 Minutes" program, Justice Scalia ridiculed that line of reasoning. Said Scalia: "there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."
Those comments earned Scalia the ire of some anti-abortion activists. A commentary published by the American Life League denounced him as "one of the preborn child's worst enemies." (The controversy has passed mostly unnoticed in the coverage of Scalia after his death, though the Guardian did mention it deep in an article headlined "Antonin Scalia: a supreme court justice 'extreme and out of step' with women.")
Senator Cruz takes a different view of this than Scalia did. In a televised interview with Professor Robert George of Princeton, Cruz said he did think that the 14th Amendment's equal protection provisions apply to the unborn "from the moment of conception." Through Cruz is a Southern Baptist, he cited as his authority the pope, and popes before him.
Nor is abortion law the only area where Scalia displayed some moderation. It extended to debates over economic law, too. As Richard Epstein pointed out in a piece published by the Hoover Institution, there was a rift between Scalia and Epstein, who both taught at the University of Chicago. Scalia was more of a believer in judicial restraint. As Epstein puts it: "Scalia well knew that there were legislative mistakes on the books, but feared that the courts would only make matters worse by intervening. I took the position that intervention was not only possible but desirable on constitutional grounds, so long as the Court did not stray beyond its textual mandate."
In that area, one key case is Lochner v. New York, a 1905 decision, later overturned, in which the Supreme Court struck down a New York State law limiting the maximum number of hours bakers could work. Scalia disliked that decision, while Epstein defends it. On that one, Senator Cruz sides with Scalia.
As law professor Glenn Reynolds points out, civil libertarian Harvey Silverglate appreciates Scalia's efforts to rein in vague criminal statutes. And Scalia's friendship with liberal Ruth Bader Ginsburg has been well documented.
One wonders if The Great Scalia himself could make it through the contemporary Republican presidential nomination process. On the other hand, given the widespread praise for Scalia following the news of his death, maybe a dose of his moderation and modesty might be just what Cruz and the other candidates could use.