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:

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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

101 thoughts on “SCALIA AND HIS LEGACY”

  1. David Barron’s name only appears on the lists of extreme right wing websites.

    The real leading contender appears to be Sri Srinivasan, who was approved by the senate 97-0.

    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.

  2. The fact is that Republicans allow their folks on the SCOTUS to get away with criminal activity such as perjury, and accepting large gifts from people who may have business before the court. I am referring to Thomas who lied on his forms for nearly a decade to conceal over half a million dollars his wife earned from a group which DID have a case come before the SCOTUS. He then stated it slipped his mind, and/or the form was too complex for him to understand. Both excuses should cause him to be removed if they are true. Nobody takes those seriously though. So we NOW know that Hill was telling the truth, and Thomas is a perjurer and a crook. He also has shown the only reason he comes to court is to pick up his paycheck.
    If they could impeach Clinton for lying about his sexual activities in a civil suit which had NO bearing on anything he did in office in official acts. Then they sure as hell, can and should impeach Thomas for his crime.

    Then we have Bork who was voted down because he had no credibility as a legal scholar and tailored his judgments to his extreme political positions. He was so bad that Texas Sen. Bentsen, no liberal, could not vote for him. That took some doing since Bentsen defeated a real liberal, Ralph Yarborough, to get to the Senate. I will remember his comment about an opinion Bork wrote supporting the Texas law to disenfranchise Mexican Americans. Bork maintained that the State of Texas may have had a legitimate governmental interest in making such onerous requirements to vote so the law would be legal in his view. Bentsen recalled that he was a member of the legislature that passed the law and he said that as any fool could know the whole purpose was to deny blacks and minorities their right to vote. So if Bork was so stupid or biased to not know history or facts, he had NO business being on the SCOTUS.

  3. Justice Scalia worked to meet his subjective view of the world as much as anyone on the Court guilty of so-called judicial legislation or legislation by committee. 20/20 vision from conservatives on this issue would be appreciated.

    Lest we forget, Justice Scalia lambasted whenever given the chance the 1942 Wickard v. Filburn determination that the Commerce Clause prohibits a farmer from growing more wheat than his quota permitted under the Agricultural Adjustment Act of 1938, even though the farmer was growing the excess to feed his own animals, i.e., purely local and private economic activity, rather than placing the wheat in the so-called stream of commerce. Scalia was of the opinion that the Commerce power went too far and in essence subjects state legislation under the 10th Amendment to congressional approval.

    Fast forward to 2005’s Gonzales v. Raich in which Angel Raich was growing pot in her backyard up in Oakland for self-medication. Here was Justice Scalia’s greatest opportunity to put his imprimitur on restricting the Commerce power, but what does he do? The Federalist himself concurs with the majority in upholding Wickard v. Filburn on his theory that Congress can control Ms. Raich’s garden under the Commerce power in light of the Necessary and Proper Clause (which was right there in the Constitution in 1942). Obviously, this theory was the only means to his desired end, that pot be controlled, or he would never have ridiculed Wickard v. Filburn for decades on end. Hypocritical, indeed.

    This said, he was an extremely intelligent fellow and will always have my respect for his legal scholarship.

    1. stevegroen – even you have to admit there is a great difference between growing wheat for consumption of your animals and growing pot for personal consumption/

      1. Yes, Paul, there is a big difference between consuming a bud of wheat and consuming a bud of marijuana. The former rakes the crap out of one’s colon, and the other cuts through the crap being spun in dialogue.

        The point of my post was that Justice Scalia was hypocritical as much as Justice (while at the same time arguing he’s a textualist/originalist) in that he’d change legal theories to obtain a desired result rather than promote what he apparently believed were constitutional principles.

        1. No one seems to remember that Washington, Jefferson, and perhaps Frankin, smoked hemp.

          1. @honestcharlie – the hemp grown by Washington and Jefferson is used for ropes, not for smoking. However it is possible that Shakespeare was smoking pot. They have found clay pipes with pot residue in them at his home.

  4. Drone Killing Architect May Become Next Supreme Court Justice
    A direct and egregious breach of the Fifth Amendment
    http://www.infowars.com/drone-killing-architect-may-become-next-supreme-court-justice/

    “Following the death of Supreme Court Justice Antonin Scalia over the weekend the corporate media began speculating on his replacement.

    David Barron is on the short list.

    He is a 48-year old First Circuit judge and a Harvard law professor who headed up the Justice Department’s Office of Legal Counsel during Obama’s first term.

    In that capacity, he wrote at least one memo offering the legal rationale for using drone strikes to kill American citizens overseas who were suspected of terrorism,” Alan Greenblatt wrote in 2014.”

    Just another day in DEMOCRAT (L’Observer) Obama’s U.N.-Constitutional paradise.

  5. It is unfortunate that while he advocated interpretations consistent with the framers and of 18th century ideas, he misunderstood the nature of those ideas. He completely mis-interpreted Tom Paine, Tom Jefferson, etc. and other revolutionaries of the age of reason. When the French Revolution started, they turned to American political figures for advice. They would have eschewed the King George III versions of intellectual thought.

  6. Scalia was obviously pro-life or should I use the new politically correct term “anti-choice”. This video shows the depths that a pro-abortion/choice administration will go to in order to manipulate public opinion. News flash…Mass Media is NOT for your education, but for your indoctrination. See the NDAA for details.

    Is This Why the Judge Won’t Release the Planned Parenthood Shooting Records?

  7. L’Observer It seems you never got the memo; both parties are beholden to their donors and both parties have supported the military industrial complex with zeal. To claim otherwise is to drag people into meaningless eternal arguments.

  8. Philly T. I watched the Anita Hill/ Clarence Thomas inquisition.
    I also remember it very well, so there’s no need for you to spin it for me with the David Brock stories.

  9. If I who is not a jurist cannot understand the writing or oral statements of a judge there is something seriously wrong. Laws must not be the exclusive playgrounds of lawyers. Unfortunately they are much too often and Scalia was too often an example of this problem.

    1. Philly T. It almost seems like ancient history, given intervening events.
      The leading feminists found Anita Hill’s accusations totally credible, given the target and objectives of those accusations.
      The accusations of sexual harassment and sexual assault against Bill Clinton were largely dismissed by those same feminists as lies by trailer park trash.
      So the off color jokes Clarence Thomas allegedly told were extremely offensive to feminists, if supporting Hill’s accusations were politically expedient.
      The more serious, multiple accusations against Clinton were either false, or just “his own personal business”.
      Patricia Ireland, Rep. Shroeder, Jean Lewis, etc. demonstrated a lot of “flexibilty” in the 1990s.
      This flipflopping, more than the length of time that has passed, is what makes the outrage over the Hill charges seem like ancient history.

  10. The “smear” campaign against Thomas, was in large part conducted by David Brock via The American Spectator.

    In case you are having problems with your memory, Brock recanted his story, apologized to Ms. Hill and said in his follow-on book Blinded By The Right, that he had been “a witting cog in the Republican sleaze machine.”

    So the smear, it turns out, was against Ms. Hill, not judge Thomas, who it turns out is every bit as criminal and sleazy as they accused him of, if not more.

    1. phillyT – I watched the Thomas hearings and it was Thomas who was getting smear. And guess who was at the counsel table with Anita Hill? Janet Napolitano. She has been well paid for her work with federal appointments.

  11. Bork wasn’t slimed. He was too damned conservative. He lost. Get over it.

    Thomas was confirmed for chrissakes. Are you complaining because they were mean to him? Get over it.

    Pelosi! Good lord. What’s with all you Republicans and the robotic automatic replies?

    I’m talking advocacy here. Of Torture. I’m talking standing up in front of thousands and advocating torture. – as a policy – as a way of winning an election. Political a** covering is NOT advocacy. Check it out with Yoo and Bybee. You know Bybee, don’t you? The one that’s a federal judge – a Confirmed federal judge. .

    Jeez. What a wimp. Some ‘lecture’ from a Senator is making you crazy. Are senatorial lectures hurting your feelings? Well, that just breaks my heart. Do try to carry on.

    See you at the hearings!

    Oh, sorry. My bad. Mitch declares no hearings.

    Nevermind.

    1. Leahy isn’t just some Senator…….he was instrumental in bringing about blatant partisanship and slandering as a means of getting “the right” justices.
      You seemed to have missed that point, or you prefer to pretend that it never happened.
      Since the smear campaign against Clarence Thomas ultimately failed, then you have no problem with unsuccessful smear campaigns………you have made that clear enough.
      I don’t care if you prefer to ignore historical facts. That willful blind spot does not change the fact that the Bork/Thomas confirmation hearings ushered in a new era of extremely partisan hatchet jobs by political opponents of nominees.
      Like those “too conservative”, your justification for Borking. To top it off, the senior partisan hack from Vermont is now sanctimoniously telling the Senate how to properly proceed.
      Those Leahy tactics are well known to members of the Senate. Your whining about hardball tactics when your hero Leahy took the art of smearing judicial nominees to unprecedented levels is understandable, given your belief that only ” smearing or obstructing the SOME nominees” (the ones you oppose) is proper.

    2. L’Observer – I think Obama should nominate Yoo. It would have the Republicans scrambling.

  12. tnash

    Matter of fact, can you name any Democrats that advocate torture?

    I sure am able to name of number of Republicans who hope, or did hope, to become president who advocate torture.

    Wanna play?

    1. Leading Democrats like Nancy Pelosi were briefed on practices like waterboarding, etc.
      She looked the other way, then lied that she was never told about it.
      So no, she never “advocated torture”. That’s not her style.
      She just turned a blind eye to it……..she was not the only Democrat who did……then tried to lie her way out of it.
      Great “defense” of Sen. Leahy………I don’t mind “playing”, but you must be very tired already from the games you like to play so energetically.

    2. L’Observer – John Kerry comes to mind as a Presidential candidate who has advocated torture.

  13. tnash

    and oh yeah. Good idea to bring up Cheney. There’s a guy that is up for sainthood. Now the ball is in your court…. know of any other President or Vice President that advocates TORTURE?

    And you’re worried about Leahy! What a laugh!

  14. Here ya go tnash. Post WWII, all these people were ‘slimed’.

    Since World War II, six Supreme Court nominations have been either withdrawn or rejected by the Senate.

    Douglas Ginsburg — 1987

    In November 1987, U.S. Court of Appeals Judge Douglas H. Ginsburg was forced to withdraw as President Ronald Reagan’s nominee for a vacant U.S. Supreme Court seat that had been earlier denied to Robert Bork. The reason: Ginsburg’s admission that he had used marijuana in the 1960s and 1970s while a college student and Harvard Law School professor. Ginsburg’s nomination was never voted on by the Senate. Anthony Kennedy, who eventually got the seat, was confirmed on Nov. 30, 1987 with a vote of 97-0.

    Robert Bork — 1987

    On July 1, 1987 President Ronald Reagan nominated U.S. Court of Appeals Judge Robert Bork, who served as solicitor general under President Richard Nixon, for the Supreme Court. Senate Democrats wary of his conservative philosophy and positions objected to his nomination. Bork’s nomination was rejected by the Senate on Oct. 23, 1987 by a vote of 42-58.
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    G. Harrold Carswell — 1970

    President Richard Nixon nominated U.S. Court of Appeals Judge G. Harrold Carswell to the Supreme Court on Jan. 19, 1970 to replace Justice Abe Fortas. Carswell was criticized for the high reversal rate (58%) of his decisions that were later appealed, and by civil-rights advocates for his judicial record and for vocally supporting White supremacy in 1948 while running for office in Georgia. Carswell was rejected by the Senate on April 8, 1970 by a vote of 51-45. Harry Blackmun, confirmed on May 12, 1970, replaced Fortas who resigned in 1969.

    Clement Haynsworth — 1969

    U.S. Court of Appeals Judge Clement Haynsworth was nominated to the Supreme Court on Aug. 21, 1969 by President Richard Nixon to replace Abe Fortas on the court. Haynsworth allegedly made court decisions favoring segregation and decisions on subjects where he had a financial interest. Haynsworth was defeated by a 55-45 vote on Nov. 21, 1969. Haynsworth was the first Supreme Court nominee since 1930 to be defeated by the Senate.

    Abe Fortas — 1968

    President Lyndon B. Johnson nominated Associate Justice Abe Fortas to replace retiring Chief Justice Earl Warren. At the same time Johnson declared his intention to fill the vacancy created by Fortas’ elevation with U.S. Appeals Court Judge Homer Thornberry. Though the Judiciary Committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination. On Oct.1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination.

    Homer Thornberry — 1968

    U.S. Appeals Court Judge Homer Thornberry was nominated by President Lyndon B. Johnson for Abe Fortas’ seat on the Supreme Court when the president nominated Fortas to replace Earl Warren as Chief Justice. Once Fortas withdrew his nomination in October 1968, however, Thornberry’s nomination became moot and was withdrawn by the White House without a vote.

    This list misses one that I remember, Harriet Miers. She was ‘slimed’ by the right.

    For your consideration…Bork had a paper trail that Inspector Clouseau could have followed. His failure engendered another rule of the game, or, as you succinctly put it, how to avoid being ‘slimed’. That’s how Thomas succeeded. Spare me the bs about couldn’t possibly consider a case (like abortion) that had not yet come before him.

    But all this is nonsense – your ‘concern’ about ‘stooges’ like Leahy or ‘slimy’ tactics when your nominee is about to go down, or whatever other red herrings you want to toss around. My objection is that Obama is not even supposed to nominate a successor. That’s outrageous and how those Constitution Lovin’ Republicans can even utter those words without choking on them is just more proof of their miserable small undemocratic selves.

    1. L observer……..virtually every instance you cited about nominees rejected involved legal, ethic, or qualification issues.
      Ginsburg would probably be confirmed today, but the “War on Drugs” mentality at that point, over 25 years ago, knocked him out of contention.
      Carswell had an unusually high reversal rate. That is a real cause for concern for a potential SC justice.
      Haynsworth and Fortas both had serious ethical issues. (Fortas did not have to resign, but did resign shortly after he was shot down to replace Earl Warren as Chief Justice).
      The Bork and Thomas smears were of a different nature, motivated by extremely partisan political objectives.
      Nominees may withdraw, may be approved, or may see their prospects shot down in Senate hearings.
      The Leahy-Biden-Kennedy tactics of an outright smear job were unprecedented.

    2. L’Observer – Obama can nominate whomever he likes. However, the Senate does not have to act on the nomination.

  15. Very nice article by Professor Turley.

    Justice Scalia was one of the greatest Constitutional minds in our generation. People who wish we had a different Constitution than what we have hated him because he insisted on sticking to what is written. However, Justice Scalia stood firm to his principles such that many who disagreed with him could still respect the depth of his insight into the law. I am deeply saddened by his passing.

  16. Scalia was a good man. He is and will be missed as a human being who had a heart and a sense of justice. After his funeral perhaps we can be more critical. The article by JT is quite good. It is mid night on the East Coast. Let us think of the good things and give Justice Scalia our kind thoughts.

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