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Saturday, February 13, 2016

The Mixed Legacy of a Judicial Giant

Justice Antonin Scalia has died at age 79

Supreme Court Associate Justice Antonin Scalia has died at age 79, just one month shy of his 80th birthday, according to local papers. He was found dead in his room at a hunting lodge in West Texas on Saturday. Justice Scalia had served on the Court for 29 years, since his nomination by President Ronald Reagan in 1986.

I profoundly disagreed with Scalia’s “restrained” judicial philosophy — I believe courts should actively enforce the Constitution and give no deference to “democratic majorities” when protecting individual rights.

But he was by all accounts an immensely kind man and a good colleague, and he was undoubtedly a great writer, vastly knowledgeable, principled by his lights, and — most important for an observer of the Court — engaging and witty to read.


I’ve commented previously on Scalia’s brilliant and blistering dissents in the first Obamacare case (the individual mandate and Medicaid expansion) and the second (subsidies issued on the federal exchange).

Some choice quotes from his first dissent, on the idea that the individual mandate is actually secretly a tax:

We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. …

We have never — never — treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times … throughout the Act, Congress called the exaction … a “penalty.”

In his second dissent, apparently quite frustrated by Chief Justice John Robert’s legal contortions to help the government, Scalia went for blood on both rulings:

Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.”

This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare. …

This Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence.

An Enviable, Quiet Death

Scalia had his truly bad opinions. In a 1994 death penalty appeal, Scalia filed a scathing rebuttal to Justice Harry A. Blackmun and, in the process, called for the execution of an innocent man

Blackmun argued that the death penalty was cruel, arbitrary, and fraught with mistakes. Scalia blasted Blackmun, citing the recent case of Henry Lee McCollum, who had been convicted and sentenced to death for the brutal rape and murder of an eleven-year-old girl.

“How enviable a quiet death by lethal injection compared with that!” Scalia wrote.

Of course, it might not be so enviable a death if you didn’t do it. McCollum was innocent, a fact fortunately discovered before his quiet lethal injection. In 2015, a judge ordered him released and the governor issued him a full pardon, after DNA evidence exonerated him and implicated another suspect

A Government of Unlimited* Power

Scalia’s dissents in Windsor and Obergfell, striking down the Defense of Marriage Act and bans on gay marriage, and most especially his dissent in Lawrence v. Texas in 2002, which struck down bans on sodomy, will likely be remembered as some of his worst opinions. 

In Lawrence, Scalia opined,

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. …

But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so.

What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.

It’s pointless to speculate what role Scalia’s religious beliefs had in his opinions, but it’s easy to see the role his judicial philosophy played. Scalia was a fan of in “judicial restraint,” which essentially says that anything the Constitution does not expressly protect — or is not “deeply rooted” in “history and tradition” — is not an important or “fundamental” right that needs real protection.

Instead, democratic majorities are free to do just about anything to anyone, provided they don’t trespass on any explicitly protected constitutional rights, as long as there is some conceivable universe in which their actions might make sense — the so-called rational basis test. The role of the courts is basically to defer to democratic majorities wherever possible and to enforce, not scrutinize, the laws they pass.

This philosophy flips the presumption of liberty on its head. Instead of placing the burden of proof on the government to prove that they have constitutional authority, a compelling reason, and constitutional means to restrict people’s liberty, it gives the government a blank check to do whatever it wants, with a few narrowly defined restrictions, such as freedom of speech and religion.

Instead of a people with a general right to liberty and a government of limited and defined powers, it creates a government of unlimited power and a people with a few limited and defined rights. 

This view is anathema to the Ninth Amendment’s guarantee that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and utterly disregards the Fifth and Fourteenth Amendments protections for due process of law.

Yet this is precisely the opinion that has dominated conservative jurisprudence for decades. Because the Constitution doesn’t say anything about homosexuality or marriage, there’s no reason the government can’t ban them. The government doesn’t need a good, factual reason to restrict them; the fact that a legislature voted on it is enough. 

Of course, the Constitution doesn’t explicitly mention most of the things you do every day, and if the government decides to ban or burden any of them, “judicial restraint” says you have no remedy, no matter how absurd or baseless the law. You’ll just have to wait until the democratic majority decides to stop oppressing you.

*Except for These Rights

Scalia’s broader deference to democracy did not stop him from taking firm stands when he believed the government really was violating the Constitution. He was a great friend of the First Amendment and freedom of speech.

For instance, he absolutely hated flag burning, but he nonetheless voted on First Amendment grounds to strike down laws that prohibited it. In 1989, he cast the deciding vote in a 5-4 decision to strike down Texas’s law criminalizing flag burning, in the process striking down 47 other states’ laws, and again in 1990 to overturn a federal law banning flag burning.

He also made important rulings protecting the Fourth Amendment’s guarantee against unreasonable and warrantless searches. He wrote the majority opinion in the 2012 case that ruled that the government can’t install a GPS device on your car without a warrant, and he wrote another important 5-4 opinion in 2001 that ruled that using a thermal imaging device to see inside someone’s home counted as a Fourth Amendment search.

He wrote a brilliant dissent, joined by liberal justices Kagan, Sotomayor, and Ginsburg, in a 2013 case that allowed police to collect DNA swabs from suspects without a warrant. His comment in oral argument that “the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection” is one of the most entertaining and scathing in the Court’s history.

This is to say nothing of his eloquent, tightly reasoned majority opinion in DC v. Heller, affirming for the first time an individual’s right to keep and bear arms. The stirring final paragraph of that narrow 5-4 victory for the Second Amendment:

The enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.

That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Scalia’s contributions to jurisprudence are vast and incalculable. His commitment to originalism, federalism, and the rule of law have utterly changed the way both liberals and conservatives approach constitutional questions. When he turned his forceful personality and incisive intellect onto an argument, it always came away honed to knife’s edge. If for no other reason, he will be deeply missed both by his allies and his opponents. 

Whether they were loved or hated, whether he liked the results or not, Scalia stuck by his principles to the end. He was a true giant of the judicial profession, and the legal world is emptier without his voice.

  • Daniel Bier is the executive editor of The Skeptical Libertarian.