Justice Scalia

  1. Paul Krugman
  2. Lydia McGrew
  3. Cass Sunstein
  4. George Will
  5. Wall Street Journal
  6. Gold Medal: Michael McConnell
  7. Personal Synthesis

1

Monday 2/15/16 is another Red Letter Day. Paul Krugman held my agreement for a full sentence-and-a-half:

Once upon a time, the death of a Supreme Court justice wouldn’t have brought America to the edge of constitutional crisis. But that was a different country ….

Then he went a ruined it by blaming Republicans as if it wasn’t Democrats who invented Borking (and who spent decades getting the court to endorse those policy preferences for which they couldn’t muster a democratic majority).

In a sane country, the death of Justice Anonin Scalia would get slightly more attention than the death of a top NBA referee. You know the court is full of players by the excess attention this is getting over that baseline.

There will be a lot of ink spilled over his death and its ramifications in coming days, weeks and months. I no doubt will find some of it irresistable to read and will pass it along. I’ll try, as always, to curate and not share a bunch of “same old same old.”

2

How sleep the brave, who sink to rest
By all their country’s wishes blest!
When Spring, with dewy fingers cold,
Returns to deck their hallow’d mould,
She there shall dress a sweeter sod
Than Fancy’s feet have ever trod.

There Honour comes, a pilgrim grey,
To bless the turf that wraps their clay;
And Freedom shall awhile repair
To dwell, a weeping hermit, there!

(William Collins Via Lydia McGrew at What’s Wrong with the World)

3

A paean from the Left:

Antonin Scalia was witty, warm, funny, and full of life. He was not only one of the most important justices in the nation’s history; he was also among the greatest. With Oliver Wendell Holmes and Robert Jackson, he counts as one of the court’s three best writers. Who else would say, in a complex case involving the meaning of a statute, that Congress does not “hide elephants in mouseholes”?

But his greatness does not lie solely in his way with words. Nor does it have anything to do with conventional divisions between liberals and conservatives (or abortion, or same-sex marriage). Instead it lies in his abiding commitment to one ideal above any other: the rule of law. . . .

Volumes can and will be written about Scalia’s approach to the law. 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.

(Cass Sunstein)

4

Democracy’s drama derives from the tension between the natural rights of individuals and the constructed right of the majority to have its way. Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution. But as the Goldwater Institute’s Timothy Sandefur argues, the Declaration is logically as well as chronologically prior to the Constitution. The latter enables majority rule. It is, however, the judiciary’s duty to prevent majorities from abridging natural rights. After all, it is for the securing of such rights, the Declaration declares, that “governments are instituted among men.”

Scalia’s death will enkindle a debate missing from this year’s presidential campaign, a debate discomfiting for some conservatives: Do they want a passive court that is deferential to legislative majorities and to presidents who claim untrammeled powers deriving from national majorities? Or do they want a court actively engaged in defending liberty’s borders against unjustified encroachments by majorities?

(George Will) I believe Justice Scalia would have answered “I believe in natural law and natural rights, but I don’t think it’s the job of the courts to enforce them.”

More Will:

The United States today is one Supreme Court vote away from a radical truncation of the First Amendment’s protection of freedom of speech. A Democratic president in 2017 would nominate to replace Scalia someone pledged to construe the amendment as permitting Congress to regulate political campaign speech, which would put First Amendment jurisprudence on a slippery slope to regarding all speech as eligible for regulation by the administrative state.

Scalia lived 27 years after the person who nominated him left office, thereby extending the reach of Ronald Reagan’s presidency and reminding voters of the long-lasting ripples that radiate from their presidential choices. A teacher, wrote Henry Adams, attains a kind of immortality because one never knowswhere a teacher’s influence ends. Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach and construe it.

5

Justice Scalia’s originalism often caused him to rule in ways contrary to his personal political views. One example was his decision to join the 5-4 majority in upholding flag-burning as constitutional free speech in Texas v. Johnson in 1989. He later said that the next morning as he went downstairs for breakfast he had to listen to his wife Maureen humming, “You’re a Grand Old Flag.”

We disagreed with that ruling at the time, but as the years have passed the political left has come to define an increasingly cramped view of free speech. We now think Justice Scalia was wiser than we were in anticipating that defending free speech for the left then would buttress the Constitution as a bulwark against left-wing censorship in the future.

(Wall Street Journal) Just in case you care: I supported the decision then and now, and I wasn’t anticipating the rise of Left-leaning speech censors.

More WSJ:

Justice Scalia correctly predicted that when judges behave as politicians, the people will treat them that way. And so we can see his prophesy play out in the already emerging fight to replace him. President Obama says he will nominate a replacement in this his final year, as he can under the Constitution.

But the Senate has no obligation to confirm or even vote on his nominee—especially from a President who has so willfully abused his executive power to rewrite statutes and pack the D.C. Circuit Court of Appeals. A Senate debate in an election year would be unfair to the nominee, who would face very low odds of confirmation ….

Look for President Obama to nominate a stalking horse who doesn’t really care about the job (Joe Biden?) — and listen for fly-on-the-wall accounts of what real candidates declined the honor, hoping for a more propitious moment.

6

The Gold Medal for Scalia commentary goes to Michael McConnell in the Wall Street Journal:

Justice Scalia was influential because he wrote opinions with verve and good sense, in prose that any American could read and understand. He was the best writer the Supreme Court has ever known—and with justices like John Marshall, Oliver Wendell Holmes and Robert Jackson, that is saying a lot. He was the court’s most withering logician. He showed us what a real judge can be, even on that most political court.

When Justice Scalia arrived at the Supreme Court in 1986, its jurisprudence had become sloppy, results-driven, plagued with fuzzy three-part tests and fuzzier four-part tests, all of them concocted by his predecessors with little basis in constitutional text. Today, the entire court—even the liberal justices—have adopted Justice Scalia’s style: close attention to text, awareness of history, analytical rigor. The Supreme Court has not announced an impressionistic multipart “test” in years.

As a law professor, I find it a joy to teach a Scalia opinion. His opinions make clear their premises. They follow logically. Sometimes students point out that Justice Scalia is not being true to his principles. That is a compliment, because it means he has principles that can be identified and objectively applied. Many justices have no principles for interpreting the Constitution, other than to see in it their own opinions about the issues of the day …

But text and history are about more than fastidious jurisprudence. They are about democracy: allowing Americans to decide contentious questions for themselves, where the Constitution is, honestly read, silent …

Justice Scalia’s political detractors sometimes scoffed that he was merely packaging his own preferences in the trappings of text and history, but any student of the Supreme Court can supply numerous counterexamples. Justice Scalia was undeniably conservative, but he joined with liberals to demand due process for Guantanamo detainees, to protect flag-burning (and cross-burning), to give new teeth to procedural protections for criminal defendants, and to invalidate a law against violent videogames (among many other examples).

He championed the authority of regulatory agencies to interpret their operating statutes, even when Democrats controlled those agencies. He insisted that all executive power must be exercised by a unitary president, even when that president was Bill Clinton or Barack Obama. Bush v. Gore? His detractors forget that the key holding in that case was joined by seven of the nine justices.

Bush v. Gore? Not only was the vote 7-2 on Scalia’s key passage, but it was Al Gore who invited the courts to pick the next President by taking the case to them.

7

Synthesis: I’m reminded by people who actually knew Justice Scalia, including his ideological adversaries, that his biting dissents have been immensely important to the country because they’re so well-written and accessible even to non-lawyers.

Thus did he re-contour the legal landscape, by pointing out when the activist Emperor was naked and getting even journalists to think that way.

His ideological adversaries appreciate that he made them better advocates by not letting them get away with “analysis” that amounted to little more than “here’s our fig leaf for our preferences.”And his own colleagues loved him despite the biting dissents.

Only those bench-warmers who couldn’t even begin to refute his substance focus on his “divisive” style.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.