It is still difficult for me to think of an America without Justice Antonin Scalia. I was born into a world in which Scalia was a sitting justice on the Supreme Court. His presence on the Court was a constant I took for granted. We’ve heard much in the past few weeks about Scalia’s legacy on the Court and how he shaped judicial interpretation, but I think one of his most important roles was inspiring a generation of conservative legal minds.
As we have seen at Georgetown, law schools (and academia more generally) are not welcome arenas for conservatives. That’s not surprising to anyone, and at this point conservatives are used to it – used to texts that slant left, used to professors who dismiss their viewpoint, and used to classmates who could not imagine or understand why we think the way we do.
Among other things, law school is supposed to teach you how to think and write like a lawyer. There are debates about how well it does that, of course, but that’s the goal. Reading countless decisions and opinions with which you disagree is just part and parcel of the law school experience, no matter your ideology. But for conservatives who had the opportunity to read Scalia opinions, the experience was revelatory. It was heartening to read someone who thought about legal issues the same way you did, who understood the law to mean what you thought it meant, and who wrote about it so brilliantly and wittily.
Like Scalia, I am a former high school debater, a product of a Jesuit education, a traditionalist-minded Catholic, a conservative, and a lawyer. To see someone so similar, in that prominent of a position, not only saying it’s okay to think this way, but this is the way you should be thinking about the law was incredibly inspiring and motivating. As one of the many conservative legal minds who had (and will have) the privilege of learning the law from you: thank you, Justice Scalia.
Russell Dawn had a similar experience and says that his enemies only prove his greatness. “My first exposure to Scaliaphobia came in 1991, during my first semester of law school. I didn’t yet know much about Scalia, but when I expressed agreement with the good justice on an obscure case, my more enlightened peers ridiculed me. I grew to bask in such ridicule, marveling at the feverishness of progressivist hatred toward the man. Not even his death has stemmed the flow of venom, as news of it met numerous Twitter posts cursing him to Hell.”
Andrew Geisler calls him the Tom Wolfe of law: “Indeed it has been men like Wolfe, like Scalia, like Irving Kristol and William F. Buckley Jr., who have given a generation of conservatives the confidence to be a conservative. All of us have some political inclination and the conservative disposition, but even for the politically inclined, it can be hard to be a young conservative. When a college sophomore who has been raised in a world that is often hostile to principle strolls into a constitutional law class and reads Scalia, he can’t help but feel that confidence to be a conservative.”
Ross Douthat agrees and summarizes his influence as a conservative legal giant: “Finally, Scalia’s eloquence and brio ensured that his influence was not just intellectual but also personal. Countless conservative legal eagles who came of age after 1986 will talk about how it was Scalia who inspired them to pursue a career in the law, Scalia who showed them what it meant to be an intellectually fulfilled right-winger in a profession that tilts left, Scalia whose good-humored zest for intellectual combat shaped their own approach to controversy. Indeed, there are few professional conservatives, period — academics or think tankers or even newspaper columnists — who have not been influenced in some sense by Scalia’s words, his writing, his mind.”
The death of such an American titan calls for our attention. Who was this man, what is his legacy, and how should we remember him and carry on his mission? In this post I have assembled a variety of tributes to Justice Scalia as well as some of his own writings.
Kathryn Lopez describes those who came to honor him in death: “There were people of all ages – and very many in their 20s and 30s. There were families, there were people just getting off work. People were grateful and inspired. They were worried, too. There was a real compassion for his family, and a celebration of that, too: a big Catholic Italian family. There was something of heritage and history that this man embodied and seemed to be passing with him. There was even a little sense of: Perhaps if we pay tribute we won’t lose it. The faith. The excellence. The capacity for friendship and civility. The wit and wisdom.”
Photos: The Supreme Court police stood guard waiting for Scalia. In a stirring tribute, Supreme Court staff, current law clerks, and former law clerks lined the plaza in front of the Court to await the arrival of Justice Scalia’s casket. Pallbearers carried the casket up the Supreme Court steps, past the clerks, and into the building. Justice Scalia lying in repose within the Supreme Court. As is tradition, law clerks stood vigil over the casket all day and throughout the night (four apiece in thirty-minute shifts). The Supreme Court paid its respects in its new seating order on the bench. The line to pay respects wrapped around the Supreme Court. More of the line here and here. People left fitting mementos outside the Court, including broccoli, paper bags, fortune cookies, and applesauce – all items that figured into some of his more memorable opinions. Scalia’s portrait will join the portraits of retired Justices O’Connor and Stevens. Politico has a nice slideshow of pictures from throughout Scalia’s life.
Videos: From The Heritage Foundation: Remembering a Conservative Legal Titan’s Impact on the Law. From the James Wilson Institute: Friends of Nino. From the Berkeley Federalist Society Chapter: Justice Scalia’s Legacy. Bryan Garner spent two of Scalia’s last three weeks with him and gave a few interviews about Justice Scalia, calling him a humble man who engaged in “self-mockery.” He also called Scalia a cross between Samuel Johnson and Socrates. And he spoke briefly on the friendship between Justices Scalia and Ginsburg. More on Scalia and Garner’s friendship. Stephen Colbert’s brief tribute to Justice Scalia’s humor and kindness toward him. Garner also posted a few recent photos of his friend.
Podcasts: Paul Clement, former Scalia law clerk and frequent SCOTUS attorney, gives The Federalist Society’s Student Symposium Keynote Address remembering his former boss. Remembering Scalia’s innovative opinions and time at Harvard with Alan Dershowitz. Bryan Garner and Royal Furgeson on KERA. Ben Domenech of The Federalist speaks with Georgetown law professor Randy Barnett on Scalia’s legacy, the Supreme Court vacancy, and the 2016 election. Professors Epstein and Yoo on Scalia and his successor on Ricochet. Former Scalia clerks Lawrence Lessig and Steven Calabresi speak to the National Constitution Center. Richard Re gave a short interview to the UCLA Law Review.
Scalia the Man
He thought of himself as “Nino.”
Aaron Nielson: “My favorite memory of Justice Scalia involves Halloween. I don’t know if the Supreme Court does this every year, but when I was there as a law clerk, the Supreme Court invited all the children of clerks to trick-or-treat from chambers to chambers. My kids were so excited. They dressed up and hurried off to the Court. Now, no one expects the Justices to come to those events; they are very busy people. So my wife and I told our kids not to expect to meet any of them. But that day, Justice Scalia made sure he was there to hand out treats. He was the only one. My kids (and the kids of all the other law clerks) had their picture taken with him and he took time to joke about their costumes and tell stories from when he was a boy and they really played tricks. For my kids, it was one of the highlights of the entire clerkship. I’ll always remember Justice Scalia laughing and joking with a bunch of very small people over a big bowl of candy.”
Dan Werly recalls Justice Scalia dropping by his evidence class: “After about a minute of pleasantries, Scalia blurted out, “screw this, what do you want to know?” This was a large class – about 100 students—and each one of our hearts (definitely including myself) skipped a beat. Finally, after a few awkward seconds, a brave soul tentatively put his hand up and lobbed a softball question Scalia’s way. Before the student was even done asking the question, Scalia blurted out, “too easy, what do you really want to know – come on ask me!” The class erupted in laughter as the ice had been broken. For the next two hours (he even stayed a few minutes late), Scalia eloquently answered every question on every controversial topic you could imagine.”
What made the Scalia-Ginsburg friendship work: “If you can’t disagree ardently with your colleagues about some issues of law and yet personally still be friends, get another job, for Pete’s sake,” is how Scalia once described their lifetime appointments. “As annoyed as you might be about his zinging dissent, he’s so utterly charming, so amusing, so sometimes outrageous, you can’t help but say, ‘I’m glad that he’s my friend or he’s my colleague,’” Ginsburg said. Sometimes, she said, she had to pinch herself to not laugh in the courtroom when Scalia said something audacious.”
This Guardian article shares some of the wonderful tributes to Scalia from his family members. Lessons from the family life of Antonin Scalia. Photos: The Scalia Family: Justice Scalia with his wife and nine children. Scalia poses for a quick cellphone photo.
On being countercultural: “We had our own culture,” Scalia said. “The first thing you’ve got to teach your kids is what my parents used to tell me all the time: ‘You’re not everybody else. We have our own standards and they aren’t the standards of the world in all respects, and the sooner you learn that the better.’”
Christopher Scalia pulls back the curtain on what his father was like at home: “Poor conversationalists got it worse than an unprepared lawyer during oral arguments: If anyone said “um,” Dad would lead a chorus of “ummmmmmms” to spotlight this oratorical shortcoming. Sometimes the umming would spiral into a rendition of “Thus Spoke Zarathustra.” (After his confirmation hearings, we were more than happy to point out that he had often said “uh” to the senators.)
“Even when dinner conversation proceeded “um”-free, it could still descend into another of Dad’s favorite pastimes: crumpling his napkin into a ball and throwing it into one of our glasses. Counterattacks were futile, equipped as he was with a narrow wine glass.”
And at church: “He drove us to Mass every Sunday. He brought with him his well-worn Roman Missal, its pages wrinkled from holy water and packed with decades-old prayer cards. His behavior during Mass was not always restrained. If he disagreed with a priest’s point during a sermon, he would lean forward, look toward my mother, and frown or shake his head. That was his dissent from the homily. On the other hand, if he liked a sermon, he’d tell the priest as much afterward. We all saw how important Mass was to him, his eyes closed, head bowed as he moved deep into prayer during the consecration and after Communion.”
Scalia’s Catholic faith was a defining element of his life. Catholic reporter John Allen: “I was startled to discover that Scalia knew who I was, and he proceeded to spend much of the evening grilling me about Vatican politics and Rome’s attitudes toward the world. It was clear from the tenor of the conversation that he was fascinated by Catholicism generally, and the papacy in particular.”
David Warren: “Last June, speaking with beloved Cardinal Burke in Ottawa (our greatest living canon lawyer), I asked for an opinion on Justice Scalia. It turned out the two of them were friends; not surprising. They shared an attachment to the Latin Mass, especially in the Usus Antiquior — Scalia, for instance, though a busy man throughout his life, often driving long distances with his family of a Sunday to attend the nearest available. Too, they shared great respect for legal traditions — both Roman and American — being deeply learned in each, respectively, but neither unfamiliar with the other. His Eminence mentioned, when asked, that they did not agree on everything; that Justice Scalia, while admirably originalist with respect to the USA Constitution, was prone to overlook the larger conditions of its existence.”
Robert George: “Among those—including, alas, some in academia—still in the grip of the anti-Catholic bigotry that Arthur Schlesinger, Sr., described as ‘the most deeply held prejudice of the American people,’ Scalia’s candor in speaking about his faith has given oxygen to a crank theory that Scalia’s originalism was, in reality, a kind of cover for the resolution of constitutional cases in ways that best comport with Catholic doctrine. Beyond having a hearty laugh at such malicious goofiness, the less said about it and the people who peddle it the better. Scalia himself dealt with it by noting that he was forbidden by a teaching of his faith from manipulating the Constitution, for any reason—including making the law conform to the teachings of his faith: ‘Thou shalt not lie.’”
Michael Stokes Paulsen’s memory: “Scalia was finishing his grueling oral exams in history before a fearsome panel of three, including the Jesuit head of school. After nearly an hour, the president or chair of the committee, a priest, said, ‘One final question, Mr. Scalia. What in your opinion is the most important historical event of all time?’
“‘I’ve made it!’ Scalia recalled thinking, with this absolute softball of a concluding question. He didn’t remember what answer he gave—some pompous, pretentious, seemingly intelligent ramble. But it didn’t matter. He was home free; any answer was as good as any other, of course.
‘Wrong, Mr. Scalia,’ the priest pointedly told him, bringing the young Scalia up short. (You mean there is a right answer?) ‘The Incarnation.’ There was no other historical event of equal importance.
“Scalia, telling the story, slapped his palm against his forehead. How could he have overlooked what was most fundamental? It was a lesson, he said, he’d never forgotten in more than half a century.”
Here is the C-SPAN coverage of his funeral Mass. Here’s just the video of the homily. Here is the full text of Fr. Scalia’s homily. Michael Pakaluk wrote on the beauty of Fr. Scalia’s homily: “A good homilist never tires of repeating basic truths about the faith. He constantly points his congregation to means of grace such as sacraments and sacramentals, and he highlights special blessings such as the special indulgences of the Year of Mercy. Who knows how many viewers of the funeral in this way learned for the first time that indulgences were still available in the Church, that they were available in a special way in the Year of Mercy, and that there was such a thing as a “holy door” which had such indulgences associated with it. (How many points of doctrine, you may ask, were touched upon, taught, and imparted in this one well-crafted homily?)
“[B]esides avoiding sentimentalism, the homily avoided the common mistake—and indirectly criticized the mistake—of canonizing the deceased at the funeral Mass. ‘We also know that although dad believed, he did so imperfectly, like the rest of us. He tried to love God and neighbor, but like the rest of us did so imperfectly. He was a practicing Catholic, ‘practicing’ in the sense that he hadn’t perfected it yet. Or rather, Christ was not yet perfected in him. And only those in whom Christ is brought to perfection can enter heaven.’ How refreshing to hear a priest speak this way! But note the other doctrines which are implicitly taught in Father’s statement, namely, the reality of that condition which Catholics call “Purgatory,” and its commonsense necessity, and also the value of praying for the dead. ‘Let us not show him a false love and allow our admiration to deprive him of our prayers,’ Fr. Scalia asked.”
Scalia once wrote a letter to the minister who preached at the funeral of Justice Powell. In his own words, here are his thoughts on the value of preaching the Good News at funerals: “But even in Christian services conducted for deceased Christians , I am surprised at how often eulogy is the centerpiece of the service, rather than (as it was in your church) the Resurrection of Christ, and the eternal life which follows from that. I am told that, in Roman Catholic canon law, encomiums at funeral Masses are not permitted—though if that is the rule, I have never seen it observed except in the breach. I have always thought there is much to be said for such a prohibition, not only because it spares from embarrassment or dissembling those of us about whom little good can truthfully be said, but also because, even when the deceased was an admirable person—indeed, especially when the deceased was an admirable person—praise for his virtues can cause us to forget that we are praying for, and giving thanks for, God’s inexplicable mercy to a sinner. (My goodness, that seems more like a Presbyterian thought than a Catholic one!)
“Perhaps the clergymen who conduct relatively secular services are moved by a desire not to offend the nonbelievers in attendance—whose numbers tend to increase in proportion to the prominence of the deceased. What a great mistake. Weddings and funerals (but especially funerals) are the principal occasions left in modern America when you can preach the Good News not just to the faithful, but to those who have never really heard it.”
Law Clerk Tributes
His former law clerks (“the Clerkerati”) have written in tribute to him.
Former Scalia clerk and appellate all-star Paul Clement: A few years back, during oral argument, Justice Antonin Scalia asked me when I thought “the bad old days” — when the Supreme Court routinely looked beyond the text of statutes — had ended? I said, “The bad old days ended when you got on the court, Mr. Justice Scalia.”
Rachel Barkow on the consistency and beauty of his approach: “Whether you agree or disagree with Justice Scalia’s jurisprudence, there is no denying the brilliance or coherence of his vision of the Supreme Court. It is important to note that this clarity has not come without costs to the Justice. It takes courage for a judge to stake out a clear position on what methodology he or she will follow in constitutional and statutory cases. For this transparency allows outside observers to assess the judge’s performance by a clear metric. It is so much easier for a judge to take each case as it comes without declaring an overarching method or approach. This flexibility allows the judge to change positions from case to case and vote his or her preferences without much constraint. Justice Scalia has not allowed himself that indulgence. Even if we cannot predict his vote in a given case, we know how to judge his performance, for he has told us in no uncertain terms the values he seeks to uphold and the approach he is committed to follow….[W]e must thank the Justice for articulating those standards brilliantly, cogently, and colorfully. His opinions are not only educational, they are engaging. They make us think about the role of the Court in our democracy, the nature of rights, and the balance of power in government. His opinions are also beautifully written; he is a master artisan of the craft of judicial opinion writing. Whether his opinions prompt howls of delight or screams of disgust, they are full of life, just like the Justice himself.”
Steven Calabresi, co-founder of The Federalist Society: “Justice Scalia was brilliant, funny, outspoken and, in a very deep way, quite humble. I will miss his company sorely, as I did when my own father died in 2003.” The article has more on Scalia’s legacies.
Liberal lawyer and former Scalia clerk, Tara Kole: “His approach had a logic and simplicity that resonated with me, despite my politics. I found myself able to get inside his mind in that moment, to sublimate my own views, and write confidently in his voice. I was proud when my co-clerk told me that Scalia had called it a ‘knock out.’
“If there was a true surprise during my year clerking for Scalia, it was how little reference he made to political outcomes. What he cared about was the law, and where the words on the page took him. More than any one opinion, this will be his lasting contribution to legal thought. Whatever our beliefs, he forced lawyers and scholars to engage on his terms — textual analysis and original meaning. He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.”
Former Scalia clerk, Evan Young: “And perhaps most of all, Justice Scalia was just an amazing, inspiring person. He loved high culture—art and the opera and literature—but he loved spending hours and days hunting. He enjoyed a delicious pizza (my co-clerks and I had some of our best times with the Boss at the since-closed A.V. Ristorante), but also was a connoisseur of fine dining. He had friends in the highest of high places all over the world, but he and Mrs. Scalia enjoyed hosting the clerks at their home, staying up late into the night with them trying different spirits and liqueurs. The Justice was the paragon of Originalism, but his closest friend on the Court was Justice Ginsburg, because he knew how to love and value people aside from their legal views. He took delight in the life of the mind, and showed how a job well done could truly be its own reward.”
Young later wrote more about his clerkship experience and Scalia’s love for language: “One of the best (and scariest) parts of working for Scalia was the certainty that he would be unsparing with a clerk who proposed cumbersome or clunky language for an opinion. “The Booking” was a prime opportunity for instruction. It was so named because, before sending a draft beyond the Scalia chambers, the clerk would wheel in a library cart containing every authority cited in a draft. The justice and the law clerk would sit down together, each with a copy of the draft in hand, to examine it word by word, pulling each book off the cart as each citation arose.”
William Kelley: “The memories I will cherish most are the quiet conversations over the last 25 years about the things that really matter. How does one live a faithful life? How does one raise children well? How does one face the challenge of chronic sickness? There was no bluster in Justice Scalia about these sorts of things, only a thoughtful and loving mentor and friend. When it really mattered, he was wise and gentle. Yes, he lived greatly in the law, and had a great impact on our public life. But the real Antonin Scalia was more than that—he was a great man.”
Joan Larsen: “Woe to the clerk who tried to cut a corner, or to cheat even a little; worse yet if he thought you had done it to try to reach a particular outcome that the law would not support. And no explaining why it wasn’t your fault. ‘Strict liability for law clerks,’ we used to joke. But that was the right rule. ‘This is the Supreme Court, not a moot court competition,’ he would remind us. ‘We have a duty to get things right.’
“As impatient as he may have been with our missteps, he truly valued our input. He had no use for sycophants. He wanted to get things right; and, therefore, he valued clerks who would argue with him about why his initial thinking might be wrong. If you could prove your case, you could win him over. But it could not be done with appeals to emotion, or outcome, or legacy, or anything else. The only way to convince him was to show him that the law was on the other side (usually by peeking nervously over his shoulder as he read, and questioned, and then reread the cases). My proudest moment as his clerk was convincing him, with two sleepless nights of research into dusty old precedents, that a criminal defendant should win a case that none of the justices originally thought he should win. I’m pretty sure that was the moment he was most proud of me, too.”
Justice Scalia’s hapless law clerk: “[N]one of that legislative history mattered to Justice Scalia, because the case ended (or should have ended) with the unambiguous statutory language. To emphasize that point, he wrote: ‘I confess that I have not personally investigated the entire legislative history – or even that portion of it which relates to the four statutes listed above. The excerpts I have examined and quoted were unearthed by a hapless law clerk to whom I assigned the task.’…
“’Hapless’ is of course a joke – each of Justice Scalia’s law clerks is extraordinarily fortunate to have spent a year with him. But it’s a joke to make serious point about the law, and it perfectly demonstrates Justice Scalia’s approach to judging. Even in the smallest cases, the Justice cared deeply about the “lesson” being taught by the work of the Court. He wanted to make sure the lessons were the right ones, and he didn’t balk at writing a detailed concurring opinion on a complex subject just to drive home a good lesson, even if that meant making a clerk a bit hapless.”
Ian Samuel’s article, “The Counter-Clerks of Justice Scalia,” is excellent and worth reading in full. Gil Seinfeld also wrote on the unique perspective: the good, the bad, and the ugly: reflections of a counterclerk.
Scalia’s Legal Legacy
The sheer number and variety of tributes to Justice Scalia, coming from across the political spectrum, are testaments to his greatness of mind and heart. Here are some of the more significant and interesting ones:
Current and former Supreme Court justices issued statements on his death. Chief Justice Roberts gave a brief tribute as the Court resumed: “‘We remember his incisive intellect, his agile wit, and his captivating prose, but we cannot forget his irrepressible spirit. He was our man for all seasons, and we shall miss him beyond measure,’ declared Roberts, alluding to the play and movie about one of Scalia’s heroes, Sir Thomas More.”
George Will: Why Antonin Scalia was a jurist of colossal consequence. “Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach and construe it.”
Jonathan Turley writes that Scalia finished where he started: “Scalia resisted the legal indeterminacy and intellectual dishonesty that he saw as a corruption of modern constitutional analysis. He believed that the law was not something that should be moved for convenience or popularity. Neither was he. He finished in the very same place he began in 1986. In the end, he is one of the few justices who can claim that he changed the Supreme Court more than the court changed him.”
Michael Stokes Paulsen: “On every count, Justice Scalia rates as one of the handful of greatest Supreme Court justices of all time. It will be impossible for any successor to measure up fully to his greatness. (Successor, not replacement, as no replacement is possible for Antonin Scalia.) But as the nation begins to debate a possible future appointment and the proper timing thereof, it would do well to establish as binding criteria for any nomination those on which Scalia ranks as one of the all-time greats: fidelity to the constitutional principles for which he stood, firmness and fearlessness in defense of them, and the force of intellect and legal skill to advance them persuasively and powerfully.”
Stephen Carter decries the grave-dancers: “Scalia was un homme sérieux in the classic sense — a person of both seriousness and character, a man hard to bully. Did I disagree with his positions? Frequently, and often with passion. But he was a brilliant scholar and jurist, as well as a marvelous writer, and I never failed to learn from his wonderfully crafted opinions. The need to counter his arguments made mine better.”
Cass Sunstein: “Even those of us who disagreed with him (as I often did, sometimes intensely) owe him an immense debt, because the clarity and power of his arguments forced us to do better…He was a great man, and a deeply good one.”
Dan McLaughlin on Scalia’s political impact: “The most important part of Scalia’s jurisprudence was his understanding of political philosophy – he was fond of pointing out that tyrannies like the Soviet Union had wonderful Bills of Rights, but that the Constitutional separation of powers was the real guardian of liberty without which a list of rights was just a parchment fraud.”
Nino at the Bridge: “Horatius Scalia, standing full-armored at the bridge, was a protector of liberties the founders would recognize, and would recognize themselves as having enshrined in the Constitution.”
A 2005 New Yorker feature on Justice Scalia discussed his pugnacious originalism: “Scalia said, “People ask me, ‘When did you first become an originalist?,’ like they’re saying, ‘When did you first start eating human flesh?’” But originalism used to be orthodoxy, he said. Only in recent times, he added, have judges become enamored of an approach based on—“Oh, how I hate the phrase!”—a “living Constitution.” Scalia uttered these last words with exaggerated disdain, as if he were holding up some particularly noxious leftovers extracted from the back of the fridge.”
The New Yorker article is thorough and insightful and includes interesting personal anecdotes like this one: “He noted that in 1989 he voted to strike down the conviction of a man who had burned the American flag, on the ground that the First Amendment protected such symbolic acts. “Scalia did not like to vote that way,” he said, slipping into the third person, as he often does during comic riffs. “He does not like sandal-wearing bearded weirdos who go around burning flags. He is a very conservative fellow.” Although originalists are not supposed to care about the outcome, an originalist’s wife, evidently, might sometimes consider this a crock. Scalia went on, “I came down to breakfast the next morning, and my wife—she’s a very conservative woman—she was scrambling eggs and humming ‘It’s a Grand Old Flag.’ That’s a true story. I don’t need that! A living-Constitution judge never has to suffer that way.”
New York Magazine also managed an amazing interview with Scalia: “I don’t know when I came to [originalism]. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there?”
Adam White’s tribute to The American Constitutionalist: “Though a constitutional scholar of unrivaled skill, his constitutionalism reflected a deeper view of republican self-government: that the Court, though powerful in its own proper sphere of action, was no deus ex machina for a democratic society. A nation that demands to be governed by the judiciary becomes a nation dominated by the judiciary — and, ultimately, degraded by it….”
“‘I do believe that every era raises its own peculiar threat to constitutional democracy,’ Scalia wrote for the Cato Journal in 1985. He came of age when ‘the distinctive threat of our times’ was judicial enforcement of a so-called living constitution, with judges and activists using broad terms in the Bill of Rights and the Fourteenth Amendment to destroy the space that our Constitution left for republican self-government. And he feared that the result of such judicial domination would be the degradation of republican virtue itself, rendering the people incapable of self-government. If he did not succeed in defeating that threat singlehandedly in his own lifetime— and the Court’s recent decisions make it impossible to say that he did — then he at least gave future generations an example of how victory might someday be won.”
Bill Kristol: “No one was more aware than Nino Scalia that understanding something doesn’t make it so. His greatest opinions were dissents. He stood unapologetically against many of the ruling opinions of our age; he was committed to the rule of law rather than the rule of lawyers; he made the case for a constitutional judiciary rather than an imperial one, and he demonstrated moral courage and intellectual probity rather than catering to the prejudices of the elites or flattering the passions of the people. That is why the name of Antonin Scalia will be remembered and honored long after that of Donald Trump is forgotten.”
A Justice in Full: National Review’s wonderful symposium on Scalia with remembrances from scores of people who knew him is an absolute must-read.
Judge Kavanaugh: Three Scalia dissents will become the law of the land. Matthew Franck says his final two dissents reveal the themes of his jurisprudence. Franck writes that Scalia was a persistent champion of constitutional republicanism. Scalia’s blow for federalism. Scalia by the numbers: how he became the most influential conservative jurist since The New Deal. Remembering an evening with Scalia: textualism, sandwiches, and tomato pie.
Michael Dorf’s remembrance of Scalia. Texas Supreme Court Chief Justice Nathan Hecht’s tribute. Timothy Carney calls him the champion of the little guy. David Axelrod: Justice Scalia’s surprising request for President Obama to nominate Elena Kagan. An evening with Justice Scalia – one of his last public appearances before his death.
The Washington Post’s obituary has some endearing anecdotes. The New York Times has a worthwhile, in-depth look at his life. A year ago, The Washington Post reviewed “Scalia/Ginsburg,” a comic opera about the Supreme Court. Video: How Scalia shaped conservative legal theory with Bryan Garner, Irin Carmon, and Lawrence Lessig. Scalia’s last trip with Bryan Garner, days before he died.
Remembering Scalia’s Writing
Joseph Bottum captures what made his writing special: “One angle from which he seems to be insufficiently considered, however, is that of a writer—since Justice Scalia was the most consequential American author of the last thirty years. Who else wrote like this? The small handful of people with his level of prose—novelists, poets, a few essayists, maybe—rarely produced change in public life. The small handful with his level of power—presidents, senators, movers and shakers—never matched his writing skill….
“He maintained a set of favored rhetorical tricks, easily recognizable in most of his more widely quoted passages—and one can find them even in his personal letters. He liked to use capital letters ironically, for example, and he loved—too much, I think—to construct sarcasm out of complex adjectives. Think how often you’ve read in Scalia something like “whatever-it-takes jurisprudence.” Or “give-it-a-try litigation.” Or (one of my favorites) “the sweet-mystery-of-life passage.” Or (one of my least favorites) “a standard of ‘grossly-excessive-that-means-something-even-worse-then-unreasonable.’” “Throw-in-the-towel approach,” “it-is-so-because-we-say-so jurisprudence”—he would employ the construction for any occasion, and he got about as much mileage from it as any writer has ever managed….
“He insisted loudly that the Court carry itself softly. He intemperately demanded that judges temper their ambitions to rule as philosopher kings. He immodestly raged against a lack of modesty. He wrote in memorable lines that the best decisions are those that do not strive to impose the writings of the judicial branch, and the elite class of the legal profession, on the nation. He made himself important on the Supreme Court by calling the Court to think of itself as less important.
“It was irony of which Justice Scalia was well aware. His emails and personal notes were often self-deprecating, mocking his own prose, and in one memorable conversation I had with him about writing, he said that in a different era, he would have written in a different way—conveying through a different style the lesson that the Constitution rises above the social preferences of the elite class that we pay to interpret it.
“The lesson itself, however, he would not have changed. His writing was like hot iron, with sparks flying off as he worked. But his principles were the anvil on which he hammered out his opinions, and he knew that without the anvil, there would be nothing wrought.”
William Jay, a former Scalia clerk: “Dissenting in a complex interstate water dispute, Justice Scalia took a moment to announce that he would have none of the “dictionary-approved” term “Wyomingite,” which he found too geological. Instead, he coined the term “Wyomans,” because (as he wrote in a footnote that should be posted all over the Cowboy State during this period of mourning) “the people of Wyoming deserve better….
“Why bother with those little gems buried down there in the footnotes, where no one might notice? Because the craftsmanship mattered to him. He summoned up just as much literary force in forgettable statutory cases as in those destined for the constitutional-law casebooks – and often more, because he thought those cases reflected better and more rigorous application of the skills of a lawyer and a student of the English language, as opposed to just “a democratic vote by nine lawyers.” Those cases might have been narrow, but they didn’t have to be dull.
“I hate writing,” Justice Scalia often said; “I love having written.” He meant that writing is hard when you won’t settle for anything less than perfection – but having achieved it feels glorious.”
Mona Charen: “Scalia was able to take the tremendous verve and brio of his personality and translate it perfectly to prose. He had a larger purpose too. He wasn’t just showing off his quite spectacular writing talents – he had an eye on the future. Generations of law students, when assigned Supreme Court cases, will turn to Scalia’s dissents first, just for the sheer rapier wit. But once drawn in for entertainment, they may stay for the argument.”
James Copland: “In a 1993 article in the Harvard Journal of Law & Public Policy, former U.S. solicitor general and Harvard law professor Charles Fried described Scalia’s “natural talent” for writing as of “the kind which distinguishes a Mozart from a Salieri.” Huber’s and Fried’s observations have now been justified empirically. In a 2014 computer analysis of judicial opinions’ vocabulary, University of Chicago law professors Adam Chilton and Eric Posner discovered that Scalia’s word usage surpassed not only all other then-current justices but also the opinions of great former justices on the Court—save the noted belletrist Holmes.”
Antonin Scalia, master stylist: “Scalia’s writing could swing in an instant from steely argument to wild lampoon and then combine the two and never lose its ease and gracefulness. Such a style can only be the product of exertions unseen by the reader. It requires unblinking attention and pitiless self-corrections made on the fly.”
Adam White looks at some of Scalia’s early essays before he became a judge: “Scalia will justly be remembered as one of the greatest legal minds of his generation, one of the greatest Supreme Court justices in history. But as we sit down to re-read his legal writings, we should take care to read his essays too — to do justice to his legacy, and to the challenges that we face without him.”
Dan McLaughlin looks at three Scalia opinions championing simplicity: “One of the greatest virtues of Justice Scalia in his quarter-century on the Supreme Court (he celebrates 25 years on the High Court in September) has been his structural critique of, and systemic assault on, unnecessary legal complexity.”
Scalia’s classic dissent in PGA Tour v. Casey Martin exemplified his acerbic wit and legal legacy: “Scalia decried the activist majority opinion for misappropriating the rule-making authority of golf’s governing bodies, alternately describing the majority’s reasoning as “Alice in Wonderland,” “misty-eyed,” and “Kafkaesque.”…
“The Martin case is not only a classic legal text on sports, but also a microcosm of Justice Scalia’s philosophy and greatness: clear insight on the subject discussed, brilliant writing, judicial restraint, and originalism applied no matter the case’s import. Farewell to a great jurist, an inimitable writer, and a devoted sportsman.”
Bryan Garner interviews Scalia on legal writing and advocacy (video): Part One and Part Two. From 2012: Writing with Antonin Scalia, Grammar Nerd. How David Foster Wallace prompted a Scalia book. Fifteen of Antonin Scalia’s best lines.
Scalia in His Own Words
Justice Scalia was a brilliant writer and legal mind. Here are a few selections of his own writings including thoughts on a few legal and political issues.
Scalia at Georgetown: “Each year the senior class valedictorian of the College gives what is known as the ‘Cohonguroton Oration,’ during Tropia Exercises, the College’s awards ceremony. In 1957 this person was Supreme Court Justice Antonin Gregory Scalia.” Here is Scalia’s brilliant and moving oration:
“The seeking is its own success, for only man is able to hunt the truth. The fishes, birds, and other beasts of earth do not hunger for it; the spirits and all-knowing God already eat their fill. Man alone can hunt the truth; to seek truth is to be most a man. We should measure the success of these past four years, not by the particles of truth that we have captured, for they are only grains of sand along an ocean shore, and soon even these may trickle from our memories. But if, by means of them, we have learned to love the truth, learned the art of hunting her, learned how to think, how to take an idea that lies dead between the pages of a book and make it live within our minds, then we leave here wise, we leave here ardent, skillful seekers of the truth, we leave here men….
“If we will not lead, who will? Eliminate the great number of men who have never heard the voices of the past, who know nothing of the heritage of human wisdom, who begin their hunt alone and totally unaided. These may follow, but they will never lead. Eliminate again the men who have not heard the Word of Christ whispered to the soul. They search, but they do not know what they are searching for. They are not chasing truth, but merely clutching at her shadow. Their eyes can see only the ground, and watch this shadow, while truth wings high above them. They lack the eyes of faith, which alone can pierce into eternity, and so are doomed to lose the way, and miss the truth, and overlook the light.
“Who, then, remains? Only ourselves, trained in reason and in faith. If we will not be leaders of a real, a true, a Catholic intellectual life, no one will! We cannot shift responsibility to some vague “chosen few.” We are the chosen few. The responsibility rests upon all of us, whatever our future professions. For the intellectual life, which is essentially the never-ending search for truth of which we spoke, does not belong only to the college and the university. Men are specially trained for it there, as we have been. But it should stretch far beyond, to wherever there is a man to think. It is our task to carry and advance into all sections of our society this distinctively human life, of reason learned and faith believed. If we fail to do this, if we allow the cares of wealth or fame or specialized career, to stifle our spirit of wonder, to turn us from the hunt, to kill in us what was most human, then we shall have betrayed ourselves, our society, our race. If we really love the truth, we will believe that we have been shown a marvelous pathway, that we must brace ourselves at once to follow it, that life will not be worth living if we do not otherwise! The prize is great. The risk is glorious.”
Scalia in the Scribes Journal of Legal Writing: “To write well is to communicate well. To write poorly is to communicate poorly. It also matters because to the extent that lawyers don’t write well, to the extent they abuse words, to the extent they use them incorrectly, they are making dull the tools of their trade, which is a terrible thing.”
Scalia’s 1997 Wriston Lecture on interpreting the Constitution: “I ask you to consider, do the people who want to bring us a Living Constitution want to bring us flexibility? My Constitution is flexible. My Constitution, which is; I will accept the condemnation, which is a minimalist Constitution. It means what it meant when it was written. But it is a flexible Constitution. In my Constitution you want the death penalty, pass a law. You don’t want the death penalty, pass a law the other way. How more flexible could you be? …
“And those people who would insert one after another new right into the document are not eager to bring us flexibility. They are eager to have us do it their way from Coast to Coast without the possibility of democratic change….
“That an intelligent society should debate these issues, even these important issues. Persuade one another and govern themselves. That was what 1789 was about. The Bill of Rights was a very small exception. Just a few things we will take out of this democratic process and guarantee absolutely, unless you can amend The Constitution. A very few things.
“Every time you add something to that list you diminish democracy. Whether it’s something added on behalf of liberals or on behalf of conservatives….
“Come along with me and admire the Dead Constitution. I have to get a new term for it. That one; maybe the Enduring Constitution. That’s a little better. Packaging is everything.
“It is less cosmic. It does not do all those wonderful things that maybe you think a Constitution should do. But it happens to be the way that a democracy ought to govern itself.”
Scalia on the judicialization of standardless rulemaking: “While an agency ‘legislating’ under a political check is better than an agency ‘legislating’ under no democratically imposed constraints at all, surely it is best for the Congress itself to determine the main lines of legislation—and to do so in detail much greater than the platitudinous goals of pursuing ‘the public interest’ or preventing ‘sex discrimination.’”
Scalia on capital punishment: God’s Justice and Ours. Scalia on regulatory reform. Scalia took part in an AEI forum on Article V and a constitutional convention. He also gave a lecture on interpreting the Constitution. Teaching about the Law: Marc DeGirolami writes about Scalia’s thoughts on teaching our relationship to the law.
Justice Scalia wrote many opinions for the Court, often more powerfully in dissent. Here are a few of his classic opinions and quotes.
Lamb’s Chapel v. Center Moriches Union Free School District: “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under…Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so… The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will… Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”
Planned Parenthood v. Casey: “There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is in all black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself ‘calling the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.’
“It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. Quite to the contrary, 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.”
Morrison v. Olson: “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,’ 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…
“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.’”
Webster v. Reproductive Health Services: “The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.”
District of Columbia v. Heller: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad…. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
Williams-Yulee v. The Florida Bar: “This Court has not been shy to enforce the First Amendment in recent Terms—even in cases that do not involve election speech. It has accorded robust protection to depictions of animal torture, sale of violent video games to children, and lies about having won military medals. Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement of the freedom of speech? It is no great mystery what is going on here. The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution’s guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.”
Maryland v. King: “The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason….
“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
U.S. v. Virginia (VMI): “Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law trained elite) into our Basic Law….
“In an odd sort of way, it is precisely VMI’s attachment to such old fashioned concepts as manly ‘honor’ that has made it, and the system it represents, the target of those who today succeed in abolishing public single sex education. The record contains a booklet that all first year VMI students (the so called ‘rats’) were required to keep in their possession at all times. Near the end there appears the following period piece, entitled ‘The Code of a Gentleman’:
‘Without a strict observance of the fundamental Code of Honor, no man, no matter how ‘polished,’ can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice…or he is not a Gentleman….’ I do not know whether the men of VMI lived by this Code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.”
Crawford v. Washington: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes….
“We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s–great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts’ providing any meaningful protection in those circumstances.”
Obergefell v. Hodges: The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves…. But what really astounds is the hubris reflected in today’s judicial Putsch…. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”…
“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” 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.”
Cruzan v. Director, Missouri Department of Health: “While I agree with the Court’s analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide including suicide by refusing to take appropriate measures necessary to preserve one’s life; that the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored.”
Johnson v. United States: “It has been said that the life of the law is experience. Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes a task for us which at best could be only guesswork.” Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.…
“Although it is a vital rule of judicial self-government, stare decisis does not matter for its own sake. It matters because it “promotes the evenhanded, predictable, and consistent development of legal principles.” Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent. Standing by James and Sykes would undermine, rather than promote, the goals that stare decisis is meant to serve.”
PGA Tour v. Martin: “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.”