As I am sure you have heard, Supreme Court Justice Antonin Scalia died on Saturday. His death came as a shock to the entire political community. Scalia was one of the strictest textual judges on the Court, only possibly being passed up by Justice Thomas. Scalia will also be remembered for his biting remarks in dissenting opinions. Last year, in his Obergefell decent, Justice Scalia stated that it seemed almost as if Justice Kennedy's opinion had been written from statements found in fortune cookies. Scalia will also be remembered for his detailed legal reasoning, as seen in Heller vs. District of Columbia, the case which established that the Second Amendment applies to individuals.
It is not as though Scalia got every decision right; indeed, I vehemently disagree with his opinion in Employment Division vs. Smith. However, Scalia was a great legal scholar and a principled man. He was a towering figure in the history of American jurisprudence. Scalia, in some circles, is credited with bringing textual interpretation back to the Supreme Court.
Over this last weekend, I have wondered why God called him home. It seems as if he is still needed here. With him on the Court, the ratio was 4-1-4; now, without him, the Court is 4-1-3. He was vital in many landmark decisions: Heller vs. District of Columbia, Hobby Lobby vs. Burwell, and Schuette vs. Coalition to Defend Affirmative Action. Without him, each of these cases would have been lost. There are several more cases coming up for review that were expected to be 5-4. Now that the Court has 8 members, until a replacement is nominated, a tie vote will defer to the lower court's decision.
Where Do We Go From Here?
Although the death of Scalia has been hard for the conservative movement, we must remember that Scalia was not our only hope. Scalia's death will create a massive fight over his replacement. Obama will attempt to appoint a replacement. The Senate does not have to approve the nominee. Historically the Senate has not approved a nominee this late in the election cycle (there have been 7 such cases). The Democrats have cited the case of Anthony Kennedy's nomination as an example of the Senate approving a nominee this late in the election cycle; however, he replaced Lewis Powell, who retired in June of 1987, over a year before the election. Reagan originally nominated Judge Robert Bork as Powell's replacement, but the Senate blocked Bork's nomination. Kennedy was the second nominee and was approved during an election year. This case is different from Powell's replacement. Replacing a man like Scalia should not be taken lightly.
Remembering Justice Scalia
The following are some of Scalia's best quotes:
"God assumed from the beginning that the wise of the world would view Christians as fools…and He has not been disappointed. Devout Christians are destined to be regarded as fools in modern society. We are fools for Christ’s sake. We must pray for courage to endure the scorn of the sophisticated world. If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world."
"To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
"If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong."
“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.”
“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
More quotes can be found here, here and here
Rest in peace Justice Scalia. We shall always remember you.