Saturday, February 13, 2016

Antonin Scalia, RIP

Justice Scalia's past law clerks provide an honor guard as his coffin comes to the Court.
(Click to enlarge.)

In today's highly polarized political atmosphere, the death of a sitting Supreme Court Justice is a guaranteed flash point. To have a sitting conservative Justice like Antonin Scalia die in an election year, however, in which different parties control the White House and Congress, is a true test of our political system.

Justice Scalia's was one of the most articulate and penetrating intellects ever to grace the Court. His colleagues could disagree with him, but that was because he always made it perfectly clear where he stood. He never knuckled under to public pressure or opinion polls, and for nearly 30 years he applied his originalist jurisprudence consistently to the cases that came before him.

Here are some samples of his pointed observations -- from his opinions, speeches and interviews:

Dissenting last June in Obergefell v. Hodges (the same-sex marriage case) -- one of the worst decisions ever to come from a 5-4 divided Court:
This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Calling an interviewer's attention, in 2011, to the dangers flowing from trying to "keep the Constitution current" -- which is what the majority did in Obergefell:
Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
Upholding the Second Amendment's limitation on government's power to  restrict the right to own guns, in District of Columbia v. Heller (2008):
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.
Dissenting in 2001 in the case of PGA Tour v. Martin, where the majority decided that a disabled professional golfer had a constitutional right to use a golf cart in the PGA Tour:
I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.
Dissenting again in Lee v. Weisman (1992), where the majority held that prayer led by a priest at a public school graduation ceremony was unconstitutional:
The Court presumably would separate graduation invocations and benedictions from other instances of public "preservation and transmission of religious beliefs" on the ground that they involve "psychological coercion." I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, has come to "requir[e] scrutiny more commonly associated with interior decorators than with the judiciary." But interior decorating is a rock hard science compared to psychology practiced by amateurs. A few citations of "[r]esearch in psychology" that have no particular bearing upon the precise issue here cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court's argument that state officials have "coerced" students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.
And dissenting in the 5-4 decision upholding Roe v. Wade -- Planned Parenthood v. Casey (1991):
By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Justice Scalia was known for his dire predictions of the consequences of poorly-reasoned majority decisions, and he has more than often been proved right. As far back as 1988 he warned in Morrison v. Olson that the majority was ignoring the Framers' carefully designed balance of powers by upholding the right of Congress to take away the President's power to appoint a special counsel:
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
He concluded by pointing out the utter lack of standard in allowing a simple majority to decide just "how much" of the executive power could be taken away:
The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."
He was again prescient in his dissent in Lawrence v. Texas (2003), which overruled a decision upholding sodomy laws that had been handed down just 17 years earlier. He predicted that the decision would lead to the Court's eventual sanctioning of gay marriage, precisely as it did last summer:
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... 
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. ... 
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else... What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. 
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. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage ...  At the end of its opinion -- after having laid waste the foundations of our rational-basis jurisprudence -- the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,"and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added).  
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.... I dissent.
Of all his writings and interviews, however, this one in October 2013, given to New York Magazine, has to count as his most candid and personal: follow the link and read the whole thing (it's eight pages) for a true insight into what motivated him. Note that he denigrated his potential legacy:
50 years from now I may be the Justice Sutherland of the late-twentieth and early-21st century, who’s regarded as: “He was on the losing side of everything, an old fogey, the old view.” And I don’t care.
Justice Scalia's sudden demise leaves a vacancy on the Court that will become the football of politics. Senate Majority Leader Mitch McConnell has already thrown down the gauntlet, saying that his place "should not be filled until we have a new president," while President Obama has taken up the gauntlet by declaring that he plans to make an appointment "soon" -- and that he expects a fair hearing and a timely vote. Count on Obama to play the politics of the situation to the hilt. Partisans are already rushing to take sides in what promises to be a major confrontation between the Senate and a lame-duck President.

The history of nominations and confirmations of Supreme Court Justices in an election year does not bode well for the Democrats, since they are in a minority in the Senate. The most notable recent instance was the failure in 1968 to get a vote on Lyndon Johnson's nomination of Abe Fortas. Even though the Democrats also controlled both houses of Congress, they could not muster the votes in the Senate to stop the Republicans' filibuster of the nomination. And as related in this article, the last time a President was successful in having his nomination in an election year confirmed by a Senate controlled by the opposition party was in 1880.

Justice Scalia was a strong and capable figure on the Court, and will be extremely difficult to replace. For what it is worth, I agree with this summation of what made Antonin Scalia such an iconic figure:
Justice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.
Prayers of consolation go out to Justice Scalia's family, especially his wife Maureen. Both devout Roman Catholics, they met on a blind date in 1960 when he was at Harvard Law School and she was at Radcliffe. They married that fall, and eventually raised five sons and four daughters.

Requiescat in pace, Antonin Scalia.


  1. The loss of Justice Scalia is, IMHO, a terrible event, particularly at this moment in time.

    Pax et bonum,
    Keith Töpfer

  2. (Due to failure by poster to change glasses, this observation was incorrectly on the tail of the article concerning "climate change". We shall speak to him about posting on the correct screed in the future.)

    This is not a comment so much as it is an advisory that we felt moved to place our readers on notice that they should all come to this article in order to arm themselves concerning the arguments to come concerning early endorsement by the US Senate of any replacement of Justice Scalia.
    El Gringo Viejo