SCALIA AND HIS LEGACY

scaliaThe Washington Post posted my column on Sunday discussing the passing of Associate Justice Antonin Scalia, a towering figure on the United States Supreme Court and an icon for conservative jurists. It is regrettable that people today often demonize those with whom they disagree. Scalia was personally a warm and engaging person. Indeed, liberal justices Ginsburg, Breyer, and Kagan appeared quite close to Scalia as not just a colleague but a friend. I expect that Scalia has left a lasting legacy that will withstand the test of time, as I discuss below. He was a man of principle. One could certainly disagree with those principles, as I sometimes did. However, he left 30 years of opinions that challenged and often changed doctrines in a wide array of areas. These opinions show a depth and scope that sets them apart in the annals of the Court. Liberals and conservatives alike should be able to recognize the impactful and brilliant life of Nino Scalia. Here is the column:

———————————–

Years ago, I attended a small gathering honoring a leading Sicilian politician in Washington. Since I was raised in a Sicilian family, I relished the opportunity to talk about Italian culture and food with an animated paisan. As we drank and toasted with Italian wine, one voice constantly boomed above the rest with a “Cent’Anni” toast for everyone to “live 100 years.” It was Associate Justice Antonin Scalia, who regaled the group with his tales and jokes. We all chatted away near an open bay window when security guards approached and explained that the Italian politician had been the subject of Mafia threats and that they were worried about a hit team in Washington. Scalia would momentarily acquiesce, then quickly gravitate back to the window so he could continue to joke and laugh with the group. He was in his element; a possible hit team was not going to interrupt a good story.

Throughout his 30 years on the court, many tried to move Scalia, with equally limited success. As the court shifted to the left and constitutional analysis became more fluid, Scalia remained planted in his spot.

The Supreme Court is known to change people. Some justices, such as Byron White, came to the court as liberals and moved sharply right. Others, like William Brennan, John Paul Stevens and Harry Blackmun, were appointed as conservatives and moved sharply to the left. Scalia stood still. He came to the court with a well-defined jurisprudence that remained remarkably consistent throughout his tenure.

What made Scalia an icon for the right was the clarity and passion that he brought to the court. Like Louis Brandeis and Oliver Wendell Holmes, he was a “great dissenter” who refused to compromise on his core beliefs. He was entirely comfortable being a dissent of one. And he was greatly discomfited by the idea of exchanging principle for some plurality of votes on a decision. In oral argument as well as in his opinions, Scalia was direct and transparent. He was, in a word, genuine.

Ironically, Scalia’s passing comes at a time when the public is craving precisely the type of authenticity that he personified. The rejection of establishment candidates in both the Republican and Democratic races reflects this desire for leaders who are not beholden to others and unyielding in their principles. That was Nino Scalia. Love him or hate him, he was the genuine article. At times, as in the decision in Kyllo v. United States barring the warrantless use of thermal imagery devices by the police, Scalia would break from his colleagues on the right of the court. While many disagreed with his principles, he at least had principles and remained faithful to them from his first to his last day as a justice.

Scalia clearly relished a debate and often seemed to court controversy. It was a tendency familiar for anyone who grew up in a large Italian family: If you really cared for others, you argued with passion. Fights around the table were a sign of love and respect. Perhaps it was this upbringing that made it so hard for Scalia to resist a good argument inside or outside the court. He sometimes spoke on issues involved in cases coming before him, which was ill-advised. He was the arguably first celebrity justice. Ironically, his close friend on the court, Ruth Bader Ginsburg, has maintained the same type of following from the left side of the bench.

It was an irresistible impulse that likely cost Scalia the chance to become chief justice. That position went to a jurist of a different cut: John G. Roberts Jr. Where Scalia felt compelled to speak his mind, Roberts spent a career avoiding controversial comments or associations. There is no question that restraint can make for a great chief justice. But the directness can make a great justice, too. Indeed, Scalia’s opinions are likely to withstand the test of time because they espouse a consistent and clear jurisprudential view. He was not one to compromise. Instead Scalia waited for the court to form around his position rather than tailor a position to fit the court.

Of course, Scalia’s comments could border on the brutal. At American University, he told law students that he saw little point in selecting students from outside the top schools because “you can’t make a sow’s ear out of a silk purse.” I strongly disagreed with this statement, but I also knew that Scalia was (once again) voicing a view that other justices privately hold yet do not publicly admit. Scalia did not evade such issues; he embraced them. He believed convictions should be tested and defended if they are to be maintained.

What made Scalia persona non grata with many legal intellectuals made him an icon for millions of average citizens. In a city that seems to overflow with doublespeak and guile, Scalia spoke clearly and passionately about the law. He often chastised his colleagues for assuming the position of a super-legislature and denying the public the right to solve difficult social and political issues. He railed against inconsistency in legal theory and the proliferation of different tests by the court to justify its conclusions. He often hit his mark with these critiques: While I disagreed with Scalia about privacy and gay rights, his critique of Justice Kennedy’s new “liberty interest” in Obergefell v. Hodges correctly challenged the majority on a new and undefined right. One could disagree with Scalia and still recognize the extraordinary depth and scope of his analysis. When he had a majority, that depth gave his opinions lasting quality, as with his foundational work on the meaning and purpose of the Takings Clause in Lucas v. South Carolina Coastal Council.

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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Constitution and the Supreme Court.

Washington Post, Sunday, February 13, 2016

101 thoughts on “SCALIA AND HIS LEGACY

  1. Reply to: “RWL February 14, 2016 at 7:48 pm”:

    ‘Asystole’ is the absence of all heart activity. It can be caused by disease or accident (electric shock, drowning, asphyxiation, etc.). It is not necessarily a permanent state, and sinus rhythm can often be restored if treated immediately.

    A MI (Myocardial Infarction, or ‘heart attack’) is a much more advanced problem. It is typically Ventricular Fibrillation brought upon by coronary artery disease/occlusion (cholesterol clot), and is often a result of lifestyle issues. It can sometimes be treated, but is much more difficult.

    Scalia’s heart certainly reached Asystole. But, was it a MI? Was it induced by toxins, ‘drugs’, or the CIA’s alleged “heart attack gun”? The truth may be out there, but will we’ll ever find it?

    I have both ALS (Advance Life Support) and BLS (Basic Life Support) certifications, but this should not be construed as medical advice, or practicing medicine without a license.

  2. Randyjet…….
    You’re in great company…….along with Patricia Ireland and the other “feminists” who KNOW Anita Hill was telling the truth, you simultaneously brush aside accusations against Slick Willy.
    It goes back to the question Hillary recently stumbled over…….who “deserves” to be believed.
    Depends on the target, and political mileage that can be squeezed out of it.

  3. If your only defense of Clarence Thomas is “what about Bill Clinton” then apparently you have no defense.
    And what with his apparent addition to adult films, his egregious conflicts of interest and his evident lack of judicial intellect , it’s no surprise that you would not be able to defend Thomas.

  4. “What made Scalia persona non grata with many legal intellectuals made him an icon for millions of average citizens. In a city that seems to overflow with doublespeak and guile, Scalia spoke clearly and passionately about the law.”

    ****************************************
    Scalia was a sharp guy and, by all accounts, blessed with an engaging personality. He also had a biting wit and, like a lot of smart people, placed more regard on his logical pronouncements than the lives of the ordinary people whose lives he affected directly or indirectly.

    Consider his dissent in the case of In Re: Troy Davis. Convicted of murder in state Court, Davis convinced a federal district judge that he was actually innocent of the crime and a new trial was warranted. The case then went before the “charming” Nino. Thought the majority agreed that you do indeed have a constitutional right to life if you are factually innocent of murder, as most any fifth grader could have concluded, Nino was not so disposing of mind writing:

    “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” ~ In re: Troy Davis (2009)

    Nino might have been a wonderful dinner companion, sparkling conversationalist and maybe even a damn fine dancer, but as a human being charged with carrying out justice — and not just the precripts of law — not so much.

    I’ll mourn his passing just not his absence.

    • Philly T. Clarence Thomas did a pretty good job of defending himself in those hearings.
      The outrage expressed at the time by the feminist jihadists is noteworthy, given their subsequent silence and efforts to discredit sexual harassment/sexual assault claims against “their” guy.
      Blatant hypocrisy and opportunism are pretty hard to miss.

    • mespo, Scalia was right about the Constitution not empowering the federal government to vacate a State’s death sentence properly arrived at through due process. The recourse for Troy Davis was not in the Constitution, but in the pardon and parole board of the State of Georgia, or perhaps executive clemency from governor Sonny Perdue. The problem is that everybody with the power to stay his execution or to grant clemency who looked at the facts of the case found that he was properly adjudicated guilty. Nobody found anything but political reasons to grant clemency, and that just wasn’t enough to make it happen.

  5. So, Scalia’s death was ruled by Presideo County Judge Cinderella Guevara to be the result of “natural causes,” without even an examination of Scalia’s body. What’s next? After Scalia’s body was swiftly embalmed, a half-ass autopsy by Presideo County Coroner Rumpelstiltskin Montoya? I love fairy tales. Don’t you?

  6. phillyT “And I prefer to think of the anti-abortionists as “pro-birth” because the vast majority of them don’t appear to give two sh*ts about what happens after the fetus is born.”

    Where is your proof that they “don’t give two sh*ts?”

    Lavoy Finicum was a foster parent to 50 boys. Oh wait, he must have done it for the money and fame. Why don’t you find examples of people giving a sh*t and see how few you can come up with and them look for as many examples as you can of those not giving a sh*t and show us your statistical analysis. Stop repeating mindless mass media talking points, please.

  7. When everything else is forgotten, Justice Scalia’s legacy will be the man who stole a presidential election.

    A jurist whose doctrine of ‘convenient constructionalism’ failed to include those parts of the constitution (Art II, XII & XX amd.) mandating disputes in Presidential elections (a purely political matter) be decided by the Congress, not the Supreme Court.

    An ante-bellum reactionary who cynically used the 14th Amendment equal protection clause as a cudgel to STOP a legal vote count and disenfranchise thousands of African Americans – precisely the opposite of the Amendment’s original intent.

    An anti-Federalism advocate who illegitimately exercised the power of the Federal government to stomp on the explicit Constitution rights of individual states to conduct their own election procedures and resolve their own disputes.

    Justice Scalia’s opinions in the Bush v. Gore line are the epitome of his political hackery disguised in psuedo jurisprudential claptrap, and future legal scholars will surely cite them in any discussion of the worst cases of all time.

    When all is said and done, that will be his legacy.

    Get over it.

  8. Hilde,
    I believe the tag line for this blog is the proof. The thing speaks for itself. Cut benefits for women, and punish them in a hundred ways. Cut benefits for children. One in four American children in Ohio are at risk for hunger. in America. In 2016. Republicans do not care, they have no empathy. They only are about themselves and their own.

  9. davidm2575

    Your applauding Scalia for upholding the Constitution as it was written, as it was meant, as what was going on in the minds of those who wrote the document two and a half centuries ago in a time when only certain people could vote, most could own others, and the rape and pillaging of the continent had just begun but had gone on long enough to be fully condoned, religiously so, and just something that had to be done, illustrates the problem at hand.

    In other words if a conservative experiences a liberal interpretation of the Constitution then it is being perverted. If a liberal experiences a conservative interpretation of the Constitution then it is being perverted. Scalia interpreted the Constitution to suit his own bent. He was conservative therefore the Constitution meant what he so eloquently and pompously proclaimed.

    This doesn’t mean you are wrong; it just means you are not right. However, when Scalia versed phrases like, ‘a homosexual agenda’, he kind of outed himself as somewhat bigoted.

  10. Tom Nash,
    Clarence Thomas defended himself by playing the race card. Remember the “high tech lynching”? phrase he used? Of course, it was alright for a conservative to do that, and god knows it worked. The liberals in the Senate ran away in shame instead of pursuing the truth about the man.

    And Ponocrates, I think you hit it dead on, though I will give the man a little more credit for his early work. But principled across the board? Not for a minute. Not a dirty minute.

    • Philly T. Thanks for naming your “multiple, non-partisan sources” you that (you claimed ) determined Gore actually won Florida.
      You have another opportunity here to substantiate your statement……or another opportunity to keep changing the subject.

  11. phillyT

    ” In 2016. Republicans do not care, they have no empathy. They only are about themselves and their own.”

    Whoah I stand corrected. You seem to know SO many Republicans. I’m impressed… Hmm they do not care and they have no empathy. Well why don’t we just put all the Republican useless eaters in a big pile and bomb them to Kingdom come. I mean NONE of them have any use whatsoever so why not? They’re apparently subhuman parasites, and you should know being the epitome of humaneness. I’m sure your charity is unbounded….Is it only the Democrats who care? Oh please tell me is there anyone who cares? Which group or religion or ?????? I await your schooling…

  12. CIBOLO CREEK RANCH OWNER RECALLS SCALIA’S LAD HOURS IN TEXAS
    http://www.mysanantonio.com/news/local/article/Texas-ranch-owner-recalls-Scalia-s-last-hours-6830372.php

    “He was seated near me and I had a chance to observe him. He was very entertaining. But about 9 p.m. he said, ‘it’s been a long day and a long week, I want to get some sleep,” recalled Houston businessman John Poindexter, who owns the 30,000-acre luxury ranch.

    When Poindexter tried to awaken Scalia about 8:30 the next morning, the judge’s door was locked and he did not answer. Three hours later, Poindexter returned after an outing, with a friend of Scalia who had come from Washington with him.

    RELATED: 11 things to know about the death of Supreme Court Justice Antonin Scalia — and what happens next

    “WE DISCOVERED THE JUDGE IN BED, A PILLOW OVER HIS HEAD. His bed clothes were unwrinkled,” said Poindexter.

    “He was lying very restfully. It looked like he had not quite awakened from a nap,” he said.”

    OH DEAR GOD, PLEASE WAKE UP PEOPLE. DO NOT IGNORE THIS, EXPLAIN IT AWAY AND GO BACK TO SLEEP. TIME TO STOP KIDDING YOURSELF. WTFU.

  13. If God didnt intend Obama to make a liberal appointment to the Supreme Court, then why did God off Scalia with almost 11 months left in office? This is the work of the Lord. Who is the GOP to be adverse to obvious will of our Lord?

  14. Just saw Prof. JT on CNN with Anderson Cooper & Jeff Toobin…..had to laugh about JT’s comment, regarding if he was selected to replace Scalia: ‘You would fake your death in order not to go through the process.’…Is it that bad?! LOL!

  15. Go to link at the bottom to read the rest.

    “Let’s jump right in with quotes from the Washington Post, 2/15, “Conspiracy theories swirl around the death of Antonin Scalia”. The Post published extraordinary statements from the Facebook page of “William O. Ritchie, former head of criminal investigations for D.C. police”:

    “As a former homicide commander, I am stunned that no autopsy was ordered for Justice Scalia.”

    “You have a Supreme Court Justice who died, not in attendance of a physician. You have a non-homicide trained US Marshal tell the justice of peace that no foul play was observed. You have a justice of the peace pronounce death while not being on the scene and without any medical training opining that the justice died of a heart attack. What medical proof exists of a myocardial Infarction? Why not a cerebral hemorrhage?”

    “How can the Marshal say, without a thorough post mortem, that he was not injected with an illegal substance that would simulate a heart attack…”

    “Did the US Marshal check for petechial hemorrhage in his eyes or under his lips that would have suggested suffocation? Did the US Marshal smell his breath for any unusual odor that might suggest poisoning? My gut tells me there is something fishy going on in Texas.”

    If this isn’t enough, the Post goes on:

    “Scalia’s physician, Brian Monahan, is a U.S. Navy rear admiral and the attending physician for the U.S. Congress and Supreme Court. He declined to comment on Scalia’s [prior] health when reached by telephone Monday at his home in Maryland. “’Patient confidentiality forbids me to make any comment on the subject,’ he said.”

    “When asked whether he planned to make public the statement he’s preparing for [Texas Judge] Guevara, Monahan repeated the same statement and hung up on a reporter.”

    As long as no law-enforcement investigation of Scalia’s death is launched, the doctor is justified. Confidentiality applies, unless Scalia’s family lifts it. But if such an investigation is opened, all bets are off. Confidentiality no longer applies.

    There are reports that, after Scalia’s body was transported from the celebrity ranch in Texas, closely guarded and shielded by a bevy of marshals, it was rapidly embalmed. If so, that would apparently make toxicological tests far more difficult or impossible.

    As for a murder motive, try: upsetting the voting balance of the US Supreme Court. Try: a push to appoint a new Justice now, thus ensuring the appointee’s political persuasion, regardless of the outcome of the 2016 Presidential election. Try: attempting to shift the Court’s voting balance in upcoming cases on abortion, immigration, and Obamacare.

    Dismiss the comfortable notion that “this couldn’t happen.” JFK couldn’t have been murdered, but he was. High political figures don’t carry special immunity.

    Dismiss assurances from incompetents in Texas that Scalia died of natural causes, and dismiss the press repeating these assurances—which add up to: nothing.

    Dismiss calls for “propriety in a time of grief.”

    Dismiss whatever opinions, pro and con, circulate now about Scalia, his points of view, his decisions, his character, his life. They’re irrelevant to the facts of his death. Those facts are as clear as mud.

    Dismiss the typical accusations of “conspiracy theory.” It’s no theory when key facts are unknown and incompetents supplied the current “information.”

    In addition to what I’ve cited above, count as relevant the fact that Scalia’s federal protection had been removed while he was at the Texas ranch. We’re told Scalia didn’t want that protection. Maybe yes, maybe no. We’re also told Scalia’s family didn’t want an autopsy. Again, maybe yes, maybe no. The family has been silent. Or if not, their statements aren’t being reported.

    Consider, as potentially relevant, the report that Scalia was found with a pillow over his head.

    Consider, as relevant, that Judge Guevara, deciding without seeing the body that Scalia died from natural causes, ruled against doing an autopsy—and a counter-opinion, offered unofficially by another Texas judge, Bishop, that she would have wanted an autopsy.”

    To read the rest go to
    https://jonrappoport.wordpress.com/2016/02/15/was-justice-scalia-murdered-forget-conspiracy-theory-this-is-real/

  16. Rett Bergmark “Who is the GOP to be adverse to obvious will of our Lord?”

    Being religious doesn’t make one automatically naive and stupid, just like being a non-believer doesn’t automatically make one naive and stupid. Are you getting it?

    Divided we fall and if you and your ilk keep promoting these worthless stereotypes that do nothing to bring us together but only serve the purpose of the power possessors who are the true benefactors of our infighting, well you’re simply asking for it.

    I have no doubt that many Republicans know that God had nothing to do with it. If you and others would take the divisive blinders off you might see the same thing.

  17. Scalia murdered? Sealed his fate 4 days before his death?

    “Four days before he died, Supreme Court Justice Scalia voted to stall Obama’s plan to force drastic climate-change rules on the American economy. The vote was 5-4. With Scalia now gone, the vote would be 4-4.”

    “Of course, most Americans don’t believe a political murder along this line could happen in real life. They can only accept it in a movie, where it makes perfect sense. That tells you something about the schizoid nature of the public mind.”

    https://jonrappoport.wordpress.com/2016/02/17/scalia-murdered-sealed-his-fate-4-days-before-his-death/

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s