I’m late noting this, I realize, but I’m just getting over a nasty bug that laid me out for more than a week. Even late, though, I couldn’t just let this go, because I believe Antonin Scalia’s death is a great loss to the Republic. Justice Scalia was indeed “one of the most brilliant and combative justices ever to sit on the Court, and one of the most prominent legal thinkers of his generation,” as Lesley Stahl described him in the introduction to his 60 Minutes profile.
He was also, by the testimony of his fellow justices, a good colleague and a good friend. Though a passionate conservative in matters of law and society, his closest friend on the Court was its leading liberal mind, Ruth Bader Ginsburg, with whom he had a close relationship going back to their days on the D.C. Circuit Court. (Hence Justice Ginsburg in the thumbnail for the first video above.) That didn’t mean that he pulled his punches; he always treated her with respect, which meant in part that he knew she was tough enough and smart enough to argue hard. Ginsburg once commented, “I love him, but sometimes I’d like to strangle him.” On the whole, though, she appreciated it:
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.
Probably nothing captures his brilliance as a legal thinker and writer so well as the fact that an entire book was published of just his dissents—and it has sold well, and continues to. Among his memorable dissents:
Maryland v. King, in which SCOTUS ruled 5-4 that states may take DNA samples from people they arrest:
The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error. . . .
The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” . . . I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. . . . Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
National Cable & Telecommunications Association v. Brand X Internet Services, in which the Court agreed that the FCC didn’t have to regulate companies like Comcast as telecommunications companies, even though they obviously are:
The question here is whether cable-modem-service providers “offe[r] … telecommunications for a fee directly to the public.” If so, they are subject to Title II regulation as common carriers, like their chief competitors who provide Internet access through other technologies.
The Court concludes that the word “offer” is ambiguous in the sense that it has “ ‘alternative dictionary definitions’ ” that might be relevant. . . . The relevant question is whether the individual components in a package being offered still possess sufficient identity to be described as separate objects of the offer, or whether they have been so changed by their combination with the other components that it is no longer reasonable to describe them in that way. . . .
If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” ante, at 18, would prevent them from answering: “No, we do not offer delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ ” Cf. Declaratory Ruling 4823, ¶39; ante, at 16, 26. Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice. . . .
Finally, I must note that, notwithstanding the Commission’s self-congratulatory paean to its deregulatory largesse, e.g., Brief for Federal Petitioners 29–32, it concluded the Declaratory Ruling by asking, as the Court paraphrases, “whether under its Title I jurisdiction [the Commission] should require cable companies to offer other ISPs access to their facilities on common-carrier terms.” Ante, at 7; see also Reply Brief for Federal Petitioners 9; Tr. of Oral Arg. 17. In other words, what the Commission hath given, the Commission may well take away—unless it doesn’t. This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions. The main source of the Commission’s regulatory authority over common carriers is Title II, but the Commission has rendered that inapplicable in this instance by concluding that the definition of “telecommunications service” is ambiguous and does not (in its current view) apply to cable-modem service. It contemplates, however, altering that (unnecessary) outcome, not by changing the law (i.e., its construction of the Title II definitions), but by reserving the right to change the facts. Under its undefined and sparingly used “ancillary” powers, the Commission might conclude that it can order cable companies to “unbundle” the telecommunications component of cable-modem service. And presto, Title II will then apply to them, because they will finally be “offering” telecommunications service! Of course, the Commission will still have the statutory power to forbear from regulating them under §160 (which it has already tentatively concluded it would do, Declaratory Ruling 4847–4848, ¶¶94–95). Such Möbius-strip reasoning mocks the principle that the statute constrains the agency in any meaningful way.
After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals.
Lee v. Weisman, where SCOTUS ruled clergy-led prayer at a public-school graduation unconstitutional:
The Court presumably would separate graduation invocations and benedictions from other instances of public “preservation and transmission of religious beliefs” on the ground that they involve “psychological coercion.” I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989), has come to “requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.” American Jewish Congress v. Chicago, 827 F.2d 120, 129 (CA7 1987) (Easterbrook, J., dissenting). But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of “[r]esearch in psychology” that have no particular bearing upon the precise issue here, ante, at 593, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court’s argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent. . . .
I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.
And perhaps his most significant dissent, in Obergefell v. Hodges:
It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
I could keep going, but I’ll stop here and recommend this collection from the New Yorker of Justice Scalia at his most acerbic. At the same time, it’s important to remember that he wasn’t just a critic. Of everything of his that I’ve read, what I’ve appreciated most has been not one of his opinions, but a letter he wrote to a Presbyterian colleague of mine who officiated at the funeral of Justice Lewis Powell:
In my aging years, I have attended so many funerals of prominent people that I consider myself a connoisseur of the genre. When the deceased and his family are nonbelievers, of course, there is not much to be said except praise for the departed who is no more. But even in Christian services conducted for deceased Christians, I am surprised at how often eulogy is the centerpiece of the service, rather than (as it was in your church) the Resurrection of Christ, and the eternal life which follows from that. I am told that, in Roman Catholic canon law, encomiums at funeral Masses are not permitted—though if that is the rule, I have never seen it observed except in the breach. I have always thought there is much to be said for such a prohibition, not only because it spares from embarrassment or dissembling those of us about whom little good can truthfully be said, but also because, even when the deceased was an admirable person—indeed, especially when the deceased was an admirable person—praise for his virtues can cause us to forget that we are praying for, and giving thanks for, God’s inexplicable mercy to a sinner. (My goodness, that seems more like a Presbyterian thought than a Catholic one!)
Perhaps the clergymen who conduct relatively secular services are moved by a desire not to offend the nonbelievers in attendance—whose numbers tend to increase in proportion to the prominence of the deceased. What a great mistake. Weddings and funerals (but especially funerals) are the principal occasions left in modern America when you can preach the Good News not just to the faithful, but to those who have never really heard it.
Given the timing of Justice Scalia’s death, it’s no surprise that so much of the discussion has focused on its political consequences; but that shouldn’t be. The time for that will come, but for now, it’s time to honor a man who was held in highest respect with deep affection by liberal and conservative colleagues alike as a legal giant and a warm and generous friend.
Photo of Antonin Scalia © 2010 Stephen Masker. License: Creative Commons Attribution 2.0 Generic.
