The 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:
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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
Somehow for some, the difference between nominate and appoint seems fairly vague.
As most know, the former requires confirmation…an affirmation.
Whatever the current Executive does needs confirmation. So let him do as he so desires.
The Associate Justice has died and many chose to examine his legacy. So be it. That theme has been most informative for one who has not attained such erudition.
The part of the thread re. his successor is a certain rouge colored fish of the family Clupeidae in this venue (pond?).
The current recent elevation of expression is much appreciated.
This ‘case’ or ‘death’ is becoming more bizarre by the minute (here’s an excerpt):
http://www.msn.com/en-us/news/us/the-death-of-antonin-scalia-chaos-confusion-and-conflicting-reports/ar-BBpuGSB?ocid=spartandhp
The Death of Antonin Scalia: Chaos, Confusion, & Conflicting Reports
MARFA, Tex. — In the cloistered chambers of the U.S. Supreme Court, Justice Antonin Scalia’s days were highly regulated and predictable. He met with clerks, wrote opinions and appeared for arguments in the august courtroom on a schedule set months in advance.
Yet as details of Scalia’s sudden death trickled in Sunday, it appeared that the hours afterward were anything but orderly. The man known for his elegant legal opinions and profound intellect was found dead in his room at a hunting resort by the resort’s owner, who grew worried when Scalia didn’t appear at breakfast Saturday morning.
It then took hours for authorities in remote West Texas to find a justice of the peace, officials said Sunday. When they did, she pronounced Scalia dead of natural causes without seeing the body and without ordering an autopsy. A second justice of the peace, who was called but couldn’t get to Scalia’s body in time, said she would have made a different decision.
“If it had been me . . . I would want to know,” Juanita Bishop, a justice of the peace in Presidio, Tex., said in an interview Sunday of the chaotic hours after Scalia’s death at the Cibolo Creek Ranch, a luxury compound less than an hour from the Mexican border and about 40 miles south of Marfa.
As official Washington tried to process what his demise means for politics and the law, some details of his final hours remained opaque. As late as Sunday afternoon, for example, there were conflicting reports about whether an autopsy should have been performed. A manager at the El Paso funeral home where Scalia’s body was taken said his family made clear they did not want one.
Meanwhile, Presidio County Judge Cinderela Guevara acknowledged that she pronounced Scalia dead by phone, without seeing his body. Instead, she spoke to law enforcement officials at the scene — who assured her “there were no signs of foul play” — and Scalia’s physician in Washington, who said the 79-year-old justice suffered from a host of chronic conditions.
“He was having health issues,’’ Guevara said, adding that she is awaiting a statement from Scalia’s doctor that will be added to his death certificate when it is issued later this week.
This column is NOT legal scholarship. It would make for a fine eulogy but it is not scholarship. Scholarship involves a more complete picture of Justice Scalia’s opinions. There was no discussion of some of the Justice’s controversial opinions. And that’s okay. But let’s not try to pass it off as a full assessment of Scalia’s career.
Scalia is associated with too many bad opinions that he wrote or agreed with for me to state other than the Supreme Court is better without him.
tnash
So I see you have seen the confirmation votes for Kagan and Sotomayor and have been mightily moved. Your comments on the vote are both thoughtful and well reasoned.
And now you choose to smoothly move on to Clarence Thomas (who correct me if I am wrong) was CONFIRMED by a very close vote in the Senate and who had eleven Democrats vote for his confirmation while the grand total of two Republicans voted against confirmation. Those Democrats! What a bunch of party hacks.
By the way, is this Clarence Thomas the same one who repeatedly asserted during the confirmation hearings that he had not yet determined what he thought about Roe v Wade? That Clarence Thomas?
Yes, tnash, I’m aware you made no reference to Foster. However, with your interesting suggestion regarding Obama’s probable use of executive orders, I thought you could have found a sympathetic pen pal with Hildegard and the other guy who also harbor similar silly ideas.
But I am glad that you mentioned that elections have consequences. I couldn’t agree more. Perhaps you will remember the one back in 2012? Re-elected the President. He holds office until January 20, 2017. He gets to nominate judges to the Supreme Court – no matter what Mitch and those six morons on the debate stage had to say on Saturday. Since they all have such a close personal relationship with God (exception: Trump), perhaps they need to consult with Him. Won’t their little feelings be hurt that God wants Obama to nominate the person who fills this vacancy.
L’Observer……..They reason that I mentioned the “Borking” and the “Anita Hilling” was to demonstrate an unpresidented smear campaign against two nominees (by Reagan, then Bush).
I asked you if you could provide any previous similar behaviour on the part of either party prior to these 1987 and 1991 confirmation battles.
I noticed that you refused to answer that.
The fact that these tactics were effective against Bork, and not quite effective against Thomas, does nothing to dispute the fact that these tactics were used in both cases.
In the confirmation hearings I have seen, nominees are very reluctant to pre-announce how they might decide on a given issue/ case.
As judges, they can’t very well announce how they will vote BEFORE a case is even brought before them.
Their previous rulings might reveal that they have clear leanings one way or the other, but there is a reluctance to commit in Senate hearings how they would vote, or how they MIGHT have voted on cases they did not participate in.
As long as stooges like Patrick Leahy are out there telling the Senate what it’s obligations are, maybe we’ll see some progress before Obama hits the bricks.
Cheney’s suggestion to Leahy about ten years ago is actually an indication of just how popular Leahy is in the Senate at large.
Some Senators were genuinely offended that Cheney would say that on the Senate floor, but I think more Senators were upset that they didn’t say it first.
Hildegard –
Re Sheriff Clarke, who should (for example) own Yellowstone or the Grand Canyon? And why?
Superb column. Scalia and JT are happy warriors, from both sides of the political spectrum. All anyone w/ even an OUNCE of class, can see Scalia’s close and profound friendship w/ Justice Ginsburg showed he argued ideas, not personal qualities. He wears the ad hominem venomous vapid attacks spewed by little people here like a badge of honor. Thanks, JT. You share the same class w/ Scalia and Ginsburg.
I suggest that we give Justice Scalia a moment of silence tonight. Each of us, on our own. After his funeral we will have plenty of time to rant about his successor and how that will come about.
tnash
Of course you don’t remember any significant opposition. Allow me to save you the time of looking up such meaningless measurements…
Kagan 63 – 37
Sotomayor 68 – 31
And I’ll give you no argument that the present ‘environment’ precludes any Obama nomination getting through. After all, the guy in charge of the Senate has already mentioned that is how things will turn out. Further, he is the same guy who proclaimed from Day One that the sole purpose of the Republicans was to make Obama a one term president. Does he sound like he’s only interested in governing?
As to the silly remark of executive orders, may I recommend a conversation with Hildegard or the other ‘Fostered’ guy. Sounds like you all share the same brilliant ideas.
Have fun!
L Observer. If you can point to anything comparable to, or a precendent for, the 1987 Borking, or the 1991 “Anita Hilling”, feel free to present it.
(A c. 2/3 majority confirmation of Kagan and Sotomayer won’t qualify).
I can’t see that a duplicitous phony like Sen. Leahy helps Obama’s case for consideration of a replacement for Scalia.
When Obama unilaterally changed immigration law (then accidentally admitted doing it), that might also be considered “silly”.
There is currently an entrenched “veto/ Executive Order” executive branch vs. a Republican Congress that will fight him tooth and nail on some issues.
In my view, that tone was largely set in 2009 when Obama lectured the Republican minority that “elections have consequences, and we won”.
He’s found out that the “elections have consequences” bit can cut both ways.
I’ve never mentioned Vince Foster, but nice try.
Philly T I think the Clarence Thomas confirmation hearings were held on a
saturday…..in any case , I was able to watch it virtually gavel to gavel.
From what I remember, very few of the Senators stated whether they believed, or disbelieved, Anita Hill’s allegations. There were comments about the timing of these allegations, brought on the very eve of the nomination hearings.
That timing, the c.10 years that had passed where Hill and co. took no action, filed no complaints, and the fact that she eagerly followed Clarence Thomas to EEOC were key factors in the fact that Thomas barely survived attempts to torpedo his nomination; not quite enough Senators could bring themselves to “convict “” Thomas based on what they saw, but I don’t think most of them categorically said they believed, or disbelieved, Hill’s accusations.
Biden himself spoke in those hearings about the inherent complication of having this allegation surface near the very end of the confirmation process.
It’s understandable that, c.25 years later, even some who watched those hearings have mistakenly blurred actual events of the hearings in with the events of the simultaneous trial held by Patricia Ireland, and other “non-partisan” feminist saints.
The art of playing the race card, and at greatly heightened levels, came well after Clarence Thomas. The game of obstructionism, expediently opposed/advocated by such towers of integrity as Leahy and Chucky “Doublespeak” Schumer, becomes much easier to play once the party in control of the Senate introduces it.
Leahy and Schumer, in particular, should be given awards for their ability to speak out of both sides of their mouth. Some of their apologists here understand and defend that same doublespeak.
Well written, JT. May he rest in peace.
Sadly, I don’t think today there’s a future nominee that can quite replace Scalia – whether Obama picks or a new GOP President chooses – Scalia’s replacement will be to his left. Just how far to the left remains to be seen.
I think many heartfelt and sincere condolences are in order for Justice Scalia’s family. Not only have they suffered his loss, but the demands of his tenure on the Court certainly lessened their time with him each week.
Thirty years service given to any organization is a sacrifice. The Supreme Court demanded nearly half of Mr. Scalia’s adult working life, to which he attended to the very end. Certainly he could have retired much sooner, as most Americans retire a decade sooner. Yet he instead continued, for a purpose he certainly held with great importance.
Justice Scalia and his name will remain with us in his opinions, writings, and contributions to the country and will remain an important topic in the educations of upcoming advocates and attorneys. His family certainly will have his public legacy, and more importantly to them they will have his private and personal life as their father, husband, friend, and the many other roles provided.
Ralph Adamo
“Much better to blindly obey. So let us, instead, tell sad tales of the death of kings, pay our respects, and then go along with the official NWO script.” This could very well be one of those situations. I would be more surprised if his death WAS natural causes.
Too many people just are not fully aware of the absolute depths these power possessing people will go to, to keep and increase their power. That kind of murderous depravity is rare and in any event it’s probably happening somewhere else. In any case we can always deal with it tomorrow.
L’Observer “the Republicans have plotted and propagandized the “illegitimacy” of President Obama.” It’s actually the other way around. Obama propagandized his own legitimacy by sealing all his personal records.
“The only people who don’t want to disclose the truth, are people with somethin’ to hide.”
Very poignant article, Mr. Turley,
The one thing that jumped out at me was Scalia’s comment ( as well as your additional comment) that he, openly, as well as the others Justices, tacitly, will not hire clerks who have not graduated from the top law schools ….. How discriminatory by all nine justices …!!! That they could not nor it appears will not take the time to interview and / or hire clerks from “lesser” law schools.
Personally, I know two lawyers who have completed the specialized requirements to argue cases before SCOTUS. NEITHER of them graduated from the top ten, say, law schools — EMORY LAW and SUFFOLK LAW respectively. It would seem to me that if an attorney can attain that level of expertise that SCOTUS feels they can argue a case correctly before the court, then they have, at least, the basics to become a clerk for the High Court.
While I am not a law student( yet), had I been there and heard that, I would have roundly booed Justice Scalia and hoped that the other law students in the audience did so, as well.
If vulgarity is a sign of intellect there are some real geniuses here. For the rest of us who prefer reasoned arguments or discussions, well, we will just ramble around in our mediocrity.
RWL I wonder what was on his plate (and I don’t mean at the party). Perhaps it was a well timed Breitbarting. Regardless it’s rather convenient for Obama. ‘No foul play’ was proclaimed almost immediately and as I understand no autopsy will be performed.
TNash
Yes, sometimes both sides of the aisle play the same game. Is there any need to remind you of Anthony Kennedy’s nomination after Bork, who held some pretty strange notions regarding the law, was borked? Reagan’s Kennedy appointment sailed through UNOPPOSED and was confirmed by a Senate held by the Democrats. Please notice. NO Democrats voted against Kennedy. None. Nada. Zero.
Might we expect a similar ‘both sides’ game by a Republican Senate this time?
No?
I thought not.
Well, honestly, it didn’t take much ‘thought’. Mitch telegraphed it ten seconds after the news of Scalia’s death got out.
L’Observer……….I think that Kagan and Sotomayor (Obama’s previous two nominees) were confirmed without significant opposition, but I’d have to recheck the vote to be sure.
The atmosphere for nominating and confirming a replacement is currently more contentious than it has been at other times; i.e., not every SC nominee has been “Borked” or “Anita Hilled”, but I don’t see Obama getting a nominee approved in the current environment.
Even with Borkers like Sen. Leahy lecturing the Senate out of both sides of his mouth about their ” responsibilities”, I don’t think GOP Senators will roll over for Obama on this one.
Maybe Obama will sidestep all of that unpleasantness and try to replace Scalia with one of his Executive Orders.
“Ralph Adamo February 14, 2016 at 4:35 pm”
… is correct. Scalia was 79 years young, in no apparent distress, and he went into Asystole in his sleep. Scalia was “Fostered” (or, “”JFK’d”).
http://knuckledraggin.com/2016/02/fostered/
ExpatNJ,
http://www.msn.com/en-us/news/us/official-scalia-died-of-heart-attack/ar-BBpuGrq?li=BBnb7Kz?ocid=ansmsnnews11
‘MARFA, Texas — The death certificate for U.S. Supreme Court Justice Antonin Scalia will list myocardial infarction — a heart attack — as the official cause of death, Presidio County Judge Cinderela Guevara told WFAA on Sunday.’
I am no medical expert, but what is the difference between a heart attack and Asystole? Isn’t a heart attack cause by increase in physical (too much or too little exercise, eating and drinking habits, etc.) and/or mental stress? What happened during the ‘party’ that caused Scalia to have a heart attack in his sleep? No one is commenting on what happened during the ‘party’. in the past 10-15 years, I have never heard of Scalia going to hospital for heart problems (usually the news media is on top of this), unless I missed something? Something happened at the party…… I would love to see the toxicology and official autopsy report, but I know we will probably never find out?
Scalia could write brilliant opinions at times. But it doesn’t take much effort to expose his intellectual dishonesty. And “genuineness” only gets you so far. A person can be “genuinely” bigoted and “genuinely” wrong.
Everyone should agree, however, that he made a real difference in this world. Right now let’s take the time to remember him as someone who made a difference, regardless of our opinions of his judicial legacy. Give his family and friends time to mourn. We will have plenty of time later to scorn or praise his life’s work as a Judge.
L’Observer……….There is nothing to stop Obama from nominating a replacement for Scalia.
There is also nothing to stop the Senate from borrowing a page from the Leahy-Biden playbook, and Borking any nominee named by Obama.
Or playing the “Clarence Thomas game”…….. 11th hour allegations can be found on a different page in the same playbook.
Once those tactics are enthusiastically employed by one side of the aisle, don’t be too surprised if the other side plays the same game.