Justice Antonin Scalia Will Be Remembered

My old pal Mike from the train used to tell me stories of Nino Scalia, cadet captain, from high school where he was a year behind. It was a Catholic military school, and Mike was Irish. The Irish kids and the Italian kids were always trying to show each other who was “better.” Kids are like that. They hold their identities dear. Too dear.

Some of the stories were funny. Some were about how Nino Scalia was a very tough kid, unyielding in his power over other cadets. All were about a person, a human being. It’s hard to hate a person when they become real rather than a cartoon character, a one-dimensional cutout that can be characterized simply as good or evil. I had the benefit of hearing Mike’s stories. Nino Scalia became a person to me, even though I never met him nor had much chance of hanging out with him to find out for myself.

Justice Scalia wrote decisions that I consider horrible. He also wrote opinions like CrawfordJohnson, Jones, Kyllo, and his dissent in County of Riverside. Ronald Collins runs down his First Amendment opinions. Jonathan Adler sums it up:

Justice Scalia would not invent or discover unwritten rights in the constitution, but he would vote to strictly enforce those that are enumerated, such as the requirement that defendants may confront the witnesses against them or the defendant’s right to a jury trial.

Of course, it’s not that simple. Nor was Justice Scalia that consistent. Nor can it be agreed that he was always true to his originalist/textualist claims, or that he was above allowing his sensibilities to influence his vote. He was imperfect. People are like that.

Justice Scalia’s opinions were, as a charitable person might say, direct and clear. A less kind person might call them acerbic, even offensive, as he pulled few punches. As someone who appreciates clarity, I appreciated his writing, if not his holding. Then again, there were times, such as his errant paragraph in Heller, that he sorely disappointed. No doubt it was of political necessity within the court, but it wasn’t what one expected of Scalia.

This is not to persuade those of you who confine your opinion to one word to characterize someone whose impact on American law has been, and will continue to be, huge. Love him. Hate him. Have mixed feelings about his legacy as I do. You’re allowed to feel whatever you want.

Within minutes of word of Justice Scalia’s shocking passing, the legal world devolved into the banal politics of the day. It’s not surprising. It couldn’t be stopped. But it was still a pathetic reminder that we are a nation of petty people lacking in grace.

This wasn’t a request, but a lament. We were well past any hope of taking a deep breath before spewing love, hate and political consequences. Sadly, the cancer of knee-jerk reactions metastasized across the Twitters.

Republican presidential candidates said exactly what one would expect of them. Senate Majority Leader Mitch McConnell and Judiciary Chair Chuck Grassley too. And others, eyes wide shut with their politics, rationalized why they were absolutely justified, as true believers are inclined to do.

This is spin. A false argument designed to support those who want to agree, and confuse those who are on the fence. It appeals to American populism, if not intelligence.

It is the president’s prerogative to nominate Justice Scalia’s replacement. We have a president, regardless of what you think of him. He was elected for a four year term, and he has 340 days left. Justice Brandeis’ nomination lingered for 125 days, the longest in our history. It would be irresponsible to believe there is any merit in leaving a seat open for a year.

But that doesn’t mean the Senate is compelled to confirm. Senators, too, are elected, and it is their duty to confirm, or not, a Supreme Court nominee. Some contend that they should refuse to confirm anyone until after the presidential election, as if this is a right. It’s not.

The Senate can vote against confirmation, but they cannot refuse to do their duty because of politics. This has nothing to do with whether you prefer President Obama to whoever succeeds him, but with how our government was constructed to perform, with its checks and balances. Contrary to Grassley’s false assertion, Supreme Court nominations in the last year of a president’s term have historically been confirmed by a Senate majority from the opposing party.

Yet, Bork? That was 1987, almost thirty years ago, and most know of it only from historical stories. No doubt Bork was a brilliant person, but he was also a flagrant and unabashed ideologue. The Senate held hearings and voted not to confirm his nomination. There is good reason to argue that he was qualified to be a Supreme Court justice. There was also good reason to reject his nomination, as he was disinclined to consider argument and deliberate, as he had already made up his mind.

It was also a different time in politics, where there was still some hope of overcoming partisanship for the greater good. Politics has shifted since then. A moderate conservative then would be deemed too liberal today. A moderate liberal then would be deemed too conservative today. The extremes have gotten far more extreme, often joining at the other side of the circle. If you’re part of the extreme, you won’t be able to see this, because of your certainty that you’re right. People are like that.

Over the years, other criminal defense lawyers have scolded me for not hating Nino Scalia as a good team player should. Mea culpa. As much as I may have disagreed with him, I refuse to deny that he was a huge and valuable influence on America law. Justice Scalia was our worst, and sometimes our best, friend on the Supreme Court. People are like that, and Justice Scalia was a real person who will be remembered for his contributions to the law. He deserves to be.

30 thoughts on “Justice Antonin Scalia Will Be Remembered

  1. Bob Zannelli

    If there had been more Scalias on the court the US constitution , especially anything to do with protecting the civil liberties of non christian Americans would have been ruled out of existence. In modern times he was the worst Supreme Court Justice ever nominated He lived a life of privilege and never wasted a brain cell with any concern for the those less privileged. Fittingly he died in a hunting camp, where he entertained himself by killing defenseless animals . He will not be not missed by those who understood who he was.

    1. RAFIV

      ” If you’re part of the extreme, you won’t be able to see this, because of your certainty that you’re right. People are like that.”

      Q.E.D. in the first post! You’re on a hot streak today Scott.

  2. Billy Bob

    How many originalists does it take to change a lightbulb?
    Answer: A majority of five.
    P.S., Originalists don’t do windows!

  3. David Woycechowsky

    Thanks for the string cite of good Scalia criminal law / procedure opinions. I wanted to read some this morning, but could only remember Kyllo and Jones off the top of my head. Last paragraph of County Of Riverside dissent really opened my eyes when I first read it many years ago.

        1. SHG Post author

          Yes, David. Thank you for being the guy who feels the need to point out the irrelevant and the obvious. Somebody has to be that guy.

  4. marc r

    I had the same knee-jerk reaction to knee-jerk reactions but I couldn’t imagine the debate not focusing on how Obama should ignore his duties for 1/4 of his term. Regardless of how anyone thinks of Scalia, it’s absurd to think the Court should have 8 members for over a year because “the people should have a say.” The people had a say electing Obama to another 4 year terms, which includes four years of appointing Article III vacancies. The GOP can block any nomination they want but to assert Obama shouldn’t nominate anyone is just legally wrong and a stupid contention.

    I think Mitch and Chuck had to speak as it’s their duty. Mourning isn’t something where we can afford to delay action. You mourn in private; the nation flies flags half mast. But when you’re that high on the political totem pole, discussions of the importance of your successor are a tribute to the pedestal your life reached. I think Scalia would love the political machinations now surrounding his death and would delight in the controversy.

    Scalia was a real person and those, like your friend, can pay their respects in their mind or to Scalia’s family. But the nation shouldn’t stop politics because of his death. Scalia the person is separate from Scalia the justice, and it’s the latter that is of issue in politics. I don’t think there’s a priority argument to stop the bickering here rather than for some other reason like the war in Syria.

    1. SHG Post author

      I think you’re conflating two issues. Stopping politics long enough to be respectful, to rise above the lowest, stupidest, most political, most cynical, isn’t stopping politics. Politics will go on regardless. But it doesn’t have to go on instantaneously. We can take a moment to breath.

      As for what Scalia would love, I can’t say. I didn’t know him, and certainly not well enough to know what he would have thought. Do you?

      1. marc r

        I think you’re conflating two issues. I didn’t know Scalia well enough to have second-hand stories like yours of his outside the Court behavior. But we have 520 US 651 (1997).

  5. John Barleycorn

    If it turns out Antonin had your blawg bookmarked on his laptop you are gonna be bummed you didn’t imbed a
    burletta in this post.

    P.S. If Clarence starts making jokes during oral arguments now, I am going to buy a service lama, name her Madame Antonin, take her to DC, strap a GoPro on her head, and start live  blawging the reactions to oral arguments from the nearest bar, to the court, that will serve her.

  6. Nigel Declan

    Thanks for a well-thought out piece about a complicated and controversial man. I have had far too many friends of mine react as though his death was cause for celebration because they disagree with his politics, treating him as some sort of faceless chess piece whose removal from the board matters only in how it affects the next 3 moves.

  7. Troutwaxer

    It would have been nice to have a moratorium on the politics of the next nomination until Justice Scalia is laid to rest.

    This. Exactly this. On a personal level… let’s just say that as a Liberal I had very strong, intense feelings about the man. However, family and friends are mourning Scalia and it would nice if they could look at the morning paper for a couple days without seeing their personal pain turned into the usual political crap-fest.

  8. Alex

    Scott –

    I’m conflicted about this. When folks are in the public light, the political dimensions of their life are fair game, even in death. The strong impulse not speak ill of the dead functions to re-write our collective memory of some pretty obnoxious people.

    Christopher Hitchens is one example that springs to mind. When he died, folks remembered him as nicer than he perhaps was. And when he wrote an obituary, he gave no quarter out of respect for the dead.

    So I think it’s fair to discuss politics and the legacy of Scalia, regardless of whether he has been buried. If you were hanging out with his family, I agree it would be rude. On the internet, not so much.

    The interesting question is whether choosing Scalia’s successor, and the political questions that go along with it, are properly thought of as part of Scalia’s legacy. I guess they have to be. His successor is obviously not part of his body of work, but will be a consequence of it and his life. So mixing it all together isn’t the worst sin in my opinion.

    As another criminal defense attorney, I got the sense from reading Scalia that he didn’t share the conservative fetish of law enforcement, and didn’t reflexively believe that cops always told the truth or acted reasonably. He didn’t turn off his BS meter when he saw a badge. I appreciate that.

    1. Mort

      On the internet, not so much.

      The is a difference between “I did not like that man” and “Why can’t I get ‘Ding Dong the Witch is Dead’ out of my head?” or “Why couldn’t Thomas die too and roast in hell those homophobes!”

      Guess which we saw more of…

  9. losingtrader

    “This is not to persuade those of you who confine your opinion to one word to characterize someone …”


    I bet I get 100% agreement on this without any need to persuade.

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  12. Bob Zannelli

    Just to illustrate Scalia’s unfitness for the high court consider two opinions he offered.

    Justice Scalia would not invent or discover unwritten rights in the
    constitution, but he would vote to strictly enforce those that are

    Just that one sentence shows how unqualified he was. He should have
    known that the Bill of Rights was a compromise between those who wanted
    to enumerate all rights and those who didn’t want to enumerate any,
    because they knew that any enumerated set would be taken to be all
    rights. So they enumerated the most important and explicitly reserved
    all other rights to the states and the people. So most of what the
    authors of the Constitution would have considered “natural rights” are
    NOT written in the Constitution

    But even worst in his opinion the first Amendment offers no protection for non religiousness Americans.. According to Scalia it would perfectly constitutional to criminalize non belief.
    [Ed. Note: Link deleted per rules.]
    Exactly how you can have a no establishment clause that allowed the government to establish non belief as criminal seems to have alluded him

    1. SHG Post author

      You are a disgrace to humanity. While I would ordinarily trash your comment, I decided to post it so that all would be able to see what disgracefulness looks like.

  13. Bob Zannelli

    You write
    ‘You are a disgrace to humanity. While I would ordinarily trash your comment, I decided to post it so that all would be able to see what disgracefulness looks like.


    More like illiterate, I need to proof read better. I meant elude and religious. Pray tell what angers you? so/

    1. SHG Post author

      Your hatred toward Scalia is disgusting, particularly coming at his death. The man died, and this is what you feel compelled to write? That’s what angers me, that you are so blinded by hatred.

      1. Billy Bob

        Nothing blinds better than Hatred. We hate the opposing football team, the IRS, the FBI, the CIA, NBC, IRA, NRA, not to mention SEC, FCC and HUD. We hate commmunists, fags, librals and Captains of Industry, and Titans of Wall St. But TrumpMaster Flash,… we luv him. Yes, we do.

      2. Bob Zannelli

        Actually what I hate is how right wing ideology and religious bigotry rather than jurisprudence and fidelity to the constitution in the high court is destroying a country I love and fought for. Scalia was a disgrace to the court and just because he’s dead doesn’t change that.

        1. SHG Post author

          Is there a bone in the head of the self-righteous that makes them blind to their own obvious simplistic, narcissistic hypocrisy? You seem like a swell guy otherwise, so how is it that you can’t see what’s flagrantly obvious to everyone looking at you?

  14. William Doriss

    At risk of being taken to the woodshed, we offer the following: Nino lacked “judicial temperament”. He was outspoken, irascible and out-of-control thru most of his career. Not the qualities we seek in a supreme justice, nor a judge in any court of common pleas. He might have made a great CDL if he had chosen to go that route; he did not.
    Nino had a philosophy and a religion. He utilized his “well crafted” philosophy when it suited him; otherwise he fell back on his religion which was well-advertised, if deemed appropriate and he could not come up with another excuse. He made some pronouncements with which we agree, and some with which we disagree, like a broken clock he was. This is not a justice of the Court, this is a man who was a philanderer at the highest branch of government, and was ultimately confused. (His untimely death in West Texas is also questionable/confusing.) In contrast to the excessive dust he made, we claim he sat on the fence, rather than the bench. We were never impressed!

    Jeffrey Rosen yesterday, Monday, on the Diane Rehm Show said he thought Scalia was the most notable/important/significant justice of the last 100 years, or words to that effect. Two other panel members agreed with him.
    What does that mean? Who cares? What if he were the 2nd most important? The 3rd? What does it matter, and who is Jeffrey anyhow to make this determination? The little twerp. OK, he wrote a book: The Nine, we think.
    Yea, we have the book and read it. Big Deal!
    We do not like the Supreme Court. It’s highly overrated. It does not matter much to those of us with boots on the ground.
    Full Disclosure: We were denied cert. by the same court. No luv lost between us and the Supremes. Ruth Bader is our gal, Nino’s sparring partner. Ha.
    Get on with it, Mr. Prez: Do your duty and nominate someone post haste, hopefully someone from the Defense Bar. Let the Republicants cry like babies. The Era of the Originalists and Textualists is hereby finished. Nice try! Let us move on to the next big thing in jurisprudence! Whatever that may be?

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