Great loss to the Court and the country Justice Scalia so loyally served.

A force for conservatism

U.S. President Obama ordered flags lowered to half to honor passing Supreme Court Justice Antonin Scalia.

Supreme Court Justice Antonin Scalia, the intellectual cornerstone of the Supreme Court’s modern conservative wing, and most provocative member, whose elegant and acidic opinions inspired a movement of legal thinkers and ignited liberal critics, died Feb. 13. He was 79.

His death quickly set off debate over a new nomination, with prominent Republicans calling for the next president to make a nomination.

Chief Justice John G. Roberts Jr. said in a statement confirming Justice Scalia’s death. “His passing is a great loss to the Court and the country he so loyally served.”

U.S. President Obama ordered flags lowered to half staff to honor passing Supreme Court Justice Antonin Scalia. The President also said he would nominate a new justice despite objections.

Based on research, since the Civil War, there have been eleven nominations to the Supreme Court in a presidential election year. Of those nine were confirmed, one withdrawn, and one was not acted upon. However, of the nine that were confirmed, eight were with a unified government–that is the President and the Senate were of the same party.

Justice Scalia, the first Italian American to serve on the court, was nominated by President Ronald Reagan. He took his seat Sept. 26, 1986, and quickly became the kind of champion to the conservative legal world that his benefactor was in the political realm.

Textualism and originalism

Justice Scalia, who had been an influential early supporter of the Federalist Society, set out immediately to make his views known — and became exactly the justice conservatives had hoped for. The most prominent advocate of a manner of constitutional interpretation called “originalism,” the idea that judges should look to the meaning of the words of the Constitution at the time they were written.

Even though most justices continued to think legislative history was valuable in interpreting statutes, lawyers arguing before the court learned that they would be upbraided by Justice Scalia for mentioning it. He refused to join opinions that cited legislative history, even in a footnote. Similarly, Justice Scalia redefined and popularized originalism.

Perhaps the greatest sign of Scalia’s influence is that liberal justices and scholars now make arguments of constitutional text and history, insisting that the conservative justices are ignoring the text and original understanding of the Constitution that Scalia said insisted should be their guide.

This experience, of growing up viewing the Supreme Court as the enemy of his conservative beliefs, shaped Scalia’s judicial philosophy to its core. At his best, Scalia was among the most passionate — and persuasive — advocates for judicial restraint ever to sit on the Supreme Court.

His approach to understanding the Constitution focused not on the framers’ intent but on the meaning of the words to ordinary citizens in 1787. He rejected the notion that the framers wanted the Constitution to be a “living” document designed to accommodate changing circumstances and social values.

“The starting point, in any case, is the text of the document and what it meant to the society that adopted it,” Scalia said at his confirmation hearing. He added that this approach guarded “against the passions of the moment that may cause individual liberties to be disregarded.”

Liberals, he said, should like such an approach, because it constrained conservatives such as him from turning their personal opinions into public policy. To illustrate, he often said that the Constitution doesn’t provide a right for a woman to have an abortion, but it also does not forbid states from making the procedure legal and accessible.

He cited his vote on flag-burning — he agreed with the court’s majority that the guarantee of free speech allows the practice — as one instance when his allegiance to the Constitution outweighed his personal views.

For much of the public, the perception of Justice Scalia was formed by the polarized court’s ruling in Bush v. Gore. Justice Scalia wrote for himself when the court issued an emergency stay to stop the vote-counting in Florida in the 2000 presidential election.“The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election,” the justice wrote.

In a per curiam decision, the Court, by a 7–2 vote, ruled that there was an Equal Protection Clause violation in using different standards of counting in different counties and, by a 5–4 vote, ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code (3 U.S.C.), § 5 (“Determination of controversy as to appointment of electors”), which was December 12.

On gay rights, Justice Scalia fought a losing battle. He warned in his 2003 dissent in Lawrence v. Texas, which struck down a state sodomy law, that the court was paving the way for same-sex marriage. He was not any happier to see his prediction come true. When the court ruled 5 to 4 in 2015 that the Constitution forbade state laws that prohibited same-sex marriage, Justice Scalia said the court had taken its most drastic step in overruling decisions made by the public.

His great triumph on the court came in writing the majority decision in District of Columbia v. Heller, the Second Amendment case. Most lower courts had long interpreted a 1939 Supreme Court case, United States v. Miller, to mean that the Second Amendment guaranteed the right to bear arms only to members of state militias, like the National Guard.

Justice Scalia’s opinion made it unmistakable that the Constitution requires more than that. The Second Amendment, he said, “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Justice Scalia wrote the court’s 5-to-4 ruling that held for the first time that the Second Amendment afforded a right to gun ownership unrelated to military service.

More than just a victory for gun rights, the case was significant for being fought on the originalist grounds that Justice Scalia had long championed. He wrote 64 pages on why the authors of the Second Amendment meant to imply an individual right; Justice John Paul Stevens countered with 46 pages of history arguing only for the militia right.

Another victory for Justice Scalia on the court might seem surprising for a conservative who was such a full-throated defender of the death penalty. Crawford v. Washington marked a revolutionary change in criminal law. Writing for the majority in 2004, Justice Scalia spelled out a bright-line rule that said “testimonial” statements by unavailable witnesses couldn’t be used as evidence in court unless the defendant had a prior opportunity for cross-examination. Previously, such statements were admissible if deemed sufficiently reliable by a judge.

The decision was a great win for criminal defense lawyers and one in which the Supreme Court majority blurred its usual conservative-liberal dividing lines.

Near the end of his tenure on the court, as Justice Scalia was on the losing side in landmark decisions on issues such as gay rights, he condemned what he called “the practice of constitutional revision by an unelected committee of nine.” In his dissent to the court’s 2015 decision in Obergefell v. Hodges recognizing a constitutional right for same-sex couples to marry, Justice Scalia summed up his objections.

“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall,” he wrote. “. . . With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court — we move one step closer to being reminded of our impotence.”

He mocked the notion of a “living” Constitution, one that evolved with changing times, as simply an excuse for judges to impose their ideological views. Critics countered that the same could be said for originalism — and that the legal conclusions Justice Scalia said were dictated by that approach meshed neatly with the justice’s views on the death penalty, gay rights and abortion.

It is perhaps worth mentioning that in his first inaugural address, as Ponnuru noted, Abraham Lincoln agreed that Supreme Court “decisions must be binding in any case upon which the parties to a suit as to the object of that suit…Lincoln observed, “the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

This is in essence the same argument that Justice Scalia recently made more vituperatively in his scathing dissent in Obergefell, in which a bare 5-4 majority of the unelected Court purported to redefine the institution of marriage while invalidating the marriage laws of four separate states in the cases before it. The subject matter of the case was of little interest, Justice Scalia said; the important question was who rules the American people?

Justice Scalia was the court’s most outspoken member on the subject of religion. He once wrote in a law review article that legal views are “inevitably affected by moral and theological perceptions.” He would then insist that his religious faith and personal views did not determine the outcome of cases because his textualist, originalist approach insulated him from bias. He thought that judges should defer to elected officials on matters of social policy.

Justice Scalia narrowly read individual rights and disdained policies designed to remedy discrimination against women and minorities. He was part of majorities that made it harder for workers to bring discrimination claims. He believed that discrimination should be judged on an individual basis rather than by treating minorities as an aggrieved group; in his view, policies meant to address discrimination against a group in effect discriminated against individuals. “I owe no man anything, nor he me, because of the blood that flows through our veins,” he wrote in a 1979 essay.

He and O’Connor clashed when the court said the University of Michigan Law School could consider race as part of a comprehensive review of an applicant because of the benefits a racially diverse class would bring.

In dissent, he wrote: “This is not, of course, an ‘educational benefit’ on which students will be graded on their Law School transcripts (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding.)”

It is hard to overstate Justice Scalia’s effect on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions.

There are many reasons why, in practice, originalism provides less of a constraint on judges than Scalia claimed. The original meaning of a document, especially one as vague as many sections of the Constitution, cannot always be determined. And there are often strong arguments for many competing interpretations.

Originalist judges can select from among these meanings to get the result they want, while still maintaining the illusion that they are engaged in a neutral and non-ideological process. Nevertheless, Scalia deserves praise for offering up a proposal to constrain the judiciary. That is not something that can be said about many other originalists.

“He has by the force and clarity of his opinions become a defining figure in American constitutional law,” Northwestern University law professor Steven Calabresi said at a Federalist Society dinner honoring Justice Scalia at the 20-year mark of his service on the Supreme Court.

“His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country,” Elena Kagan said about Justice Scalia when she was dean of Harvard Law School, alma mater to both. “He is the justice who has had the most important impact over the years on how we think and talk about law.”

Justices with political experience benefit the Court and its judgments. Unfortunately, it was his eloquent yet cutting remarks that drew partisan lines and encouraged some to believe the Supreme Court was a political body, rather than a judicial authority. Perhaps one of Scalia’s greatest successes was also in leading many Americans to this mistaken belief.

There ought to be some sense of some stability. It’s a high priority to keep any kind of partisan divide out of the judiciary ; the Court as a necessarily political but not partisan institution. These restrictions are meant to protect the independence of the judiciary from the political branches of government.

On Sunday, the Supreme Court released a document with the combined statement of current and former justice. (see here in their entirety.)

Without question, Scalia’s energy and intellectual rigor made the court a more interesting place, one where the arguments became more exciting to follow and a bigger part of the American conversation—he was a profound original who “made the job look fun,” as one contributor put it.

As for Scalia’s true impact on American law, the debate is only starting. He will be missed, but his Influence on the Supreme Court and the legal profession as a whole will remain for years to come.


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