In Memoriam: Justice Antonin Scalia
Wall Street Journal: Supreme Court Justice Antonin Scalia Dies at 79
Jess Bravin
Justice Antonin Scalia, who during three decades on the Supreme Court invigorated conservative jurisprudence and revived a focus on the Constitution’s original meaning, was found dead Saturday.
Presidio County Judge Cinderela Guevara told Texas broadcasting station WFAA on Sunday that Justice Scalia likely died of a heart attack. Judge Guevara pronounced him dead at 1:52 p.m. Saturday, the station said, and will be the official who handles his death certificate…
“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice John Roberts said in a statement for the court. “His passing is a great loss to the court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”
New York Times: Antonin Scalia, Conservative Legal Giant
Ross Douthat
But from flag burning to the rights of the accused to wartime detention, Scalia had a long record of putting originalist principle above a partisan conservatism. And this, too, set an example for his fellow conservatives: The fact that today the court’s right-leaning bloc has far more interesting internal disagreements than the often lock-step-voting liberal wing is itself a testament to the premium its leading intellectual light placed on philosophical rigor and integrity.
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.
MSNBC: Justice Ruth Bader Ginsburg on Scalia: ‘We were best buddies’
Elisha Fieldstadt and Pete Williams
In an colorful statement that began like a theater review, Ginsburg wrote:
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.
From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.
Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.
The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.
Reason: Justice Scalia and the Libertarian Legal Movement
Ilya Shapiro
Much as libertarians have disagreed with him on cases regarding unenumerated rights, from Troxel v. Granville to Obergefell v. Hodges—even to McDonald v. Chicago, where at oral argument he disparaged the Privileges or Immunities Clause and instead joined an opinion based in his long-hated substantive due process—libertarian legal eagles have to give Scalia credit. After all, without Scalia’s having made peace with the New Deal, who would Richard Epstein have to argue against about the Constitution’s protections for economic liberty?
Scalia forced everyone to raise their intellectual rigor. I wasn’t reading legal opinions before he joined the Court in 1986 (I was precocious in fifth grade, but not that precocious), but in retrospect it’s easy to see a step-change from the early 1980s to the early 1990s. It’s no coincidence that every law student now reads plenty of Scalia’s writings—majority, concurrence, and dissent—because, agree with him or not in any particular case, he grasps the nettle.
Bloomberg: The Scalia I Knew Will Be Greatly Missed
Cass Sunstein
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…
He was also a fierce defender of the “rule of lenity,” which means that where Congress has not spoken clearly, criminal defendants get the benefit of the doubt. Many liberals have been puzzled by Scalia’s willingness to embrace this principle. They shouldn’t be. For him, the rule of law comes first. People shouldn’t go to jail unless Congress has given them fair notice.
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.
Washington Post: Remembering Supreme Court Justice Antonin Scalia
Monica Akhtar and Natalie Jennings
Antonin Scalia died on Saturday, Feb. 13. Here’s a look back on his tenure, his judicial philosophy and the legacy he leaves behind
Justice Scalia on Free Political Speech
Opinion of Justice Scalia, Austin v. Michigan Chamber of Commerce, in Dissent
Antonin Scalia
“Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___.” In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the “fairness” of political debate…
The Court does not try to defend the proposition that independent advocacy poses a substantial risk of political “corruption,” as English speakers understand that term. Rather, it asserts that that concept (which it defines as “`financial quid pro quo’ corruption,”) is really just a narrow subspecies of a hitherto unrecognized genus of political corruption. “Michigan’s regulation,” we are told, “aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporations’s political ideas.” Under this mode of analysis, virtually anything the Court deems politically undesirable can be turned into political corruption – by simply describing its effects as politically “corrosive,” which is close enough to “corruptive” to qualify. It is sad to think that the First Amendment will ultimately be brought down not by brute force but by poetic metaphor. [Citation Omitted]
Opinion of Justice Scalia, McConnell v. FEC, in Dissent
Antonin Scalia
Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. In response to this threat, we have interpreted the First Amendment broadly. (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).
This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore. [Citation Omitted]
The Court going forward
Wall Street Journal: Battle Lines Drawn in Congress Over Justice Antonin Scalia’s Successor
Kristina Peterson and Siobhan Hughes
The death of conservative Supreme Court Justice Antonin Scalia on Saturday upended a quiet legislative year on Capitol Hill, igniting a partisan fight in the Senate over whether President Barack Obama—or the next president—should fill the vacancy on the high court.
While praising the justice’s service to the nation, President Obama said he plans to “fulfill my constitutional responsibilities to nominate a successor in due time.”
But Republicans in the GOP-controlled Senate quickly signaled that Mr. Obama would encounter deep resistance if he tries to replace Mr. Scalia, an icon of conservative Republicans…
Senate Majority Leader Mitch McConnell (R., Ky.) immediately indicated that Mr. Scalia’s death would spark a messy political brawl, saying the Senate shouldn’t confirm a new justice until the next—potentially Republican—president is in the White House. President Obama’s term ends in January.
Politico: How Scalia’s Death Could Shake Up Campaign Finance
Richard L. Hasen
And just as the meaning of the Constitution turned on a dime with Alito’s confirmation, there are three ways it can do so again to allow reasonable limits on campaign money…
Second, states challenge Citizens United before a new justice is confirmed. If Obama’s nominees are blocked (Senate Majority leader Mitch McConnell has already said he does not think there should be a confirmation in Obama’s remaining months), all is not lost. A brave federal circuit court or state Supreme Court might do what the Montana Supreme Court did soon after Citizens United: uphold corporate spending limits in state elections. The Supreme Court in a short opinion on a 5-4 vote smacked down the Montana Supreme Court, but it could not do the same today. A 4-4 tie in the Supreme Court keeps the lower court opinion in place, and that could, at least in some states, restore us to the pre-Citizens United era.
Salon: Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?
Jamelle Bouie
But the Senate is held by a firm Republican majority. And unless it wants to immolate itself in the flames of conservative fury, that majority will block Obama’s nominee, regardless of skill, belief, or reputation. The stakes are so high that Obama could nominate the ghost of Thurgood Marshall turned flesh and the Republican Senate would reject him as a matter of course.
Instead, as per Carroll, Cruz, and Cooke, we’ll have to wait until 2017, when the Senate swears in a new president. For Republicans, this is a rational choice.
National Review: Antonin Scalia, R.I.P. — Honor His Legacy as a Foe of Judicial Imperialism
Editorial Board
And it is precisely because of Justice Scalia’s three-decade effort to rein in a runaway Supreme Court that we urge Senator Mitch McConnell and his fellow Republicans to stand fast in their resolve to deny President Obama the capture of Scalia’s seat on the Court.
…With the Court so evenly divided, with President Obama such a proven devotee of a living Constitution that simultaneously upends settled legal understandings and liberates executive power, and with an election less than nine months away, this is no time for feckless accommodation over the future of the Supreme Court. Judicial imperialism is a cancer in the body politic. It would only metastasize with another Obama appointment. This election season, the Republican candidates for president — especially the eventual nominee — must place the politics of the judiciary squarely before the people, showing them that the only way toward a less political Supreme Court is through a more openly political debate about its future.
If this happens, Antonin Scalia will have done, in death, one last great service for his country, rescuing American voters from a binge of silliness and sobering them up about their great responsibility as a self-governing people in a constitutional republic.
