\n\tOn February 13, 2016, U.S. Supreme Court Justice Antonin Scalia was found dead while on a hunting trip in Texas. He had apparently died from natural causes
\n\tduring his sleep. He was a month shy of his eightieth birthday.\n\t<\/p>\n
\n\tThe Scalia family declined an autopsy, and his remains were immediately returned to Washington, D.C., for a memorial mass and burial. His tombstone will no
\n\tdoubt read March 11, 1936 \u2013 February 13, 2016. The seemingly unpretentious hyphen between the dates represents a life\n\t<\/p>\n
\n\tlived to the fullest—personally, professionally, intellectually, and spiritually.\n\t<\/p>\n
\n\tScalia was possessed of an enthusiasm and zest for life—vigorously deciding legal cases, passionately attending the opera, and delighting in his family. He
\n\tconducted his work and pursued cultural activities with equal ardor: he was known to listen to Bach while meticulously writing his legal opinions. He was
\n\tnever one to do anything halfheartedly, whether enjoying a plate of pasta, playing the piano, or engaging in a friendly game of poker.\n\t<\/p>\n
\n\tScalia was born in Trenton, New Jersey, on March 11, 1936, to Salvatore Eugene Scalia, an Italian immigrant, and Catherine Louise (Panaro) Scalia, a
\n\tdaughter of Italian immigrant parents. Both tempered assimilation with adherence to Italian culture and a Roman Catholic faith. His father, while starting
\n\tfrom humble roots, became a college professor.\n\t<\/p>\n
\n\tScalia enrolled in parochial school, Xavier High School in Manhattan, graduated from Jesuit-run Georgetown University and then later from Harvard Law
\n\tSchool. Appointed by President Ronald Reagan, he was an associate justice on the United States Supreme Court from 1986 until his death in 2016, nearly 30
\n\tyears.\n\t<\/p>\n
\n\t\u201cA brilliant legal mind with an energetic style, an incisive wit and colorful opinions, he influenced a generation of judges, lawyers, and students, and
\n\tprofoundly shaped the legal landscape,\u201d President Obama said. \u201cHe will no doubt be remembered as one of the most consequential judges and thinkers to serve
\n\ton the Supreme Court.\u201d\n\t<\/p>\n
\n\tIn 1960 Scalia married Maureen McCarthy in a traditional Catholic wedding, having courted her while he was a Harvard Law School student and she an
\n\tundergraduate student at Radcliffe College. Over the years their family grew to include nine grown children: five boys and four girls. Scalia\u2019s son Paul, a
\n\tCatholic priest, presided at Scalia\u2019s requiem Mass and described a doting father who would not allow work to deprive him of a healthy family life. While
\n\tmanaging professional pressures, Scalia regularly made it home for family dinner, where the conversation was lively, and was seen every Sunday morning
\n\taccompanying his wife and growing brood of children to Mass.\n\t<\/p>\n
\n\tHis Italian ancestry partly explained his Catholic identity. But he was more than a nominal Catholic. It was not just an inherited faith or a cultural
\n\troutine. It is widely reported that he took his faith seriously, sometimes attending Mass daily before reporting to the Supreme Court. He read the
\n\tScriptures and was known to study the documents of Vatican II and the encyclicals of the popes, though he relished his independence and noted his
\n\tdisagreement with a Sunday morning homily and even some of the positions various popes had set forth in encyclicals. He was a faithful Catholic, but not
\n\tone who would ever surrender careful, independent judgment.\n\t<\/p>\n
\n\tYet he was vexed and annoyed at the suggestion that somehow his Catholic faith determined his decisions on the bench. As a judge he felt it inappropriate
\n\tand unacceptable to decide a case on anything other than the law—and by the law he meant a close and faithful reading of the actual text of the applicable
\n\tand pertinent constitutional provision, treaty, statute, rule, or case.\n\t<\/p>\n
\n\t \u201cThere is no such thing as a \u2018Catholic judge,\u2019\u201d Justice Scalia insisted. \u201cThe bottom line is that the Catholic faith seems to me to have little effect on
\n\tmy work as a judge. . . . Just as there is no \u2018Catholic\u2019 way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have
\n\tcome out differently if I were not Catholic.\u201d\n\t<\/p>\n
\n\tScalia insisted on the sovereignty of the legal text, over and above the private intentions of the lawmaker or the preferences of the judge interpreting
\n\tthe law. While his preferences and moral inclinations were informed by his Catholic faith, he had taken an oath to uphold the U.S. Constitution, not to
\n\tinterpret it to coincide with religious predilections.\n\t<\/p>\n
\n\tIn an interview Scalia indicated that perhaps the only commandment that influenced his opinion writing was the prohibition against lying. When interpreting \n\tIf he felt that a decision should be overruled, then he would openly state so. If he felt stare decisis precluded overturning a case, however much he might \n\tLaw professor Eugene Kontorovich wrote that while \u201cScalia was driven profoundly by interpretive principles, he always understood that stare \n\tWhen it came to abortion rights, Scalia believed Roe v. Wade <\/em>should be overruled as without basis in the Constitution—but legal realities obligated \n\tScalia saved and invested his earnings from private practice and was able comfortably to raise nine children, with all of the attendant college tuition \n\tDuring the Nixon and Ford administrations he served in a number of government posts, ultimately landing in the Office of Legal Counsel in the U.S. \n\tIn 1982 President Ronald Reagan appointed him as judge of the United States Court of Appeals for the District of Columbia Circuit. And in 1986 Reagan \n\tOutside of the hallowed halls of the Supreme Court, Scalia was often found at the opera. Often seen with his personal friend, liberal justice Ruth Bader \n\tGinsburg recalled Scalia as \u201can absolutely charming man\u201d who could \u201cmake even the most sober judge laugh.\u201d Of course, his friendship was not limited to \n\tScalia was never accused of being soft-spoken. He wrote zealously and argued vociferously. His admirers described him as brilliant, scintillating, and \n\tFor example, on affirmative action, he wrote that \u201cin the eyes of government, we are just one race here. It is American.\u201d\n\t<\/p>\n \n\tOn Obamacare, Scalia chided the Court for its alleged convoluted reasoning to uphold the controversial statute. If being in the market for health care \n\tOn the \u201cliving\u201d Constitution, Scalia argued that the Constitution that \u201cI interpret and apply is not living but dead—or, as I prefer to put it, enduring. \n\tOn religious liberty, he penned that a \u201cpriest has as much liberty to proselytize as a patriot.\u201d\n\t<\/p>\n \n\tAnd Scalia held back no punches when taking on what he thought was governmental overreach: \u201cNo government official is \u2018tempted\u2019 to place restraints on his \n\tAs legal writer Kevin A. Ring observed, Scalia was a \u201cverbal craftsman\u201d whose prose was \u201cpointed,\u201d \u201cwitty and humorous,\u201d and \u201cvivid,\u201d \u201cputting complex \n\tJustice Scalia was a textualist. For him, the actual text of the law set the parameters of its meaning and dictated the legal outcome. Our evolving \nIn May 2002 Justice Scalia wrote an article for the magazine First Things<\/em>, entitled \u201cGod\u2019s Justice and Ours,\u201d in which he made clear that he did\tnot<\/em> subscribe to the notion that the \u201cConstitution is a \u2018living document\u2019—that is, a text that means from age to age whatever the society (or \n\tThe First Things <\/em>article was about the death penalty. And Scalia used that issue to illustrate how he decided cases and interpreted legal words that \n\tHis response to anti-capital punishment critics was that they had to pass a constitutional amendment. The U.S. Constitution itself provided for the proper \n\tSome would argue that the process itself is so burdensome that few amendments could pass. They are right to cite only 27 amendments since the \n\tIn a similar vein, when it came to abortion, while he was personally morally opposed to abortion, because he did not<\/em> believe that the Constitution \n\tIf faced with clear laws that are immoral, Scalia said the appropriate thing to do would be to resign. If one cannot in good conscience interpret the law \n\tScalia\u2019s writing will be remembered in part because of its influential, if controversial, content.\n\t<\/p>\n \n\tRight or wrong, textualism will be one of Scalia\u2019s enduring contributions to the law. As former federal appeals court judge Michael McConnell has said, now \n\tScalia\u2019s legacy will also surely include his emphasis on the structure<\/em> of the Constitution: the organization and design of the nation\u2019s founding \n\tScalia believed that the federal government\u2019s power consisted only of those delegated to it by the terms of the Constitution, and that not every problem, \n\tAs to religious liberty, some considered Scalia too accepting of government entanglement in or endorsement of religion; some accused him of virtually \n\tScalia\u2019s opinion in Employment Division, Department of Human Resources of Oregon v. Smith<\/em>,3 determined that the state could deny unemployment \n\tScalia will also be remembered for how<\/em> he said what he said. With some admitted hyperbole, law professor Richard Pildes dubbed Scalia one of the \n\tThe delightfully pugnacious Scalia not only loved to write, he also loved to speak—and even debate. Known for his tenacity, he challenged colleagues in \n\tAt the time of this writing, President Obama had nominated judge Merrick Garland to fill Scalia\u2019s seat. The nomination will have a very hard time passing On February 13, 2016, U.S. Supreme Court Justice Antonin Scalia was found dead while on a hunting trip in Texas. He had apparently died from natural causes during his sleep. He was a month shy of his eightieth birthday. The Scalia family declined an autopsy, and his remains were immediately returned to Washington, D.C., for<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[312],"tags":[144],"class_list":["post-6353","post","type-post","status-publish","format-standard","hentry","category-may-june-2016","tag-may-june-2016"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6353","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6353"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6353\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6353"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6353"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6353"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n\ta law, he would, like an umpire in baseball, call it like he saw it. Whether he was interpreting a constitutional provision, treaty, statute, rule, or case
\n\tlaw, he was bound to give effect not<\/em> to what the law ought to be, or what one might ideally envision, but to what the text of the law dictated.\n\t<\/p>\n
\n\tPrecedent and Principled Interpretation<\/strong>
\n\t<\/h2>\n
\n\thave disagreed with the earlier case, he would bow to established precedent.\n\t<\/p>\n
\n\tdecisis—adherence to precedent—is itself an important part of the Anglo-American legal system, and a constraint on judges. In practice this means
\n\tunfaithful interpretations of the Constitution that have become enmeshed in the national system for a long enough time cannot be completely or immediately
\n\treversed, only controlled at the margins and prevented from metastasizing.\u201d1\n\t<\/p>\n
\n\thim to work at the margins on that issue.<\/p>\n
\n\tPublic Servant and Lawyer\u2019s Lawyer<\/strong>
\n\t<\/h2>\n
\n\tthat involved, even after leaving private practice for academia and government service.\n\t<\/p>\n
\n\tDepartment of Justice, a common career stop before being appointed to the federal bench. He was considered a lawyer\u2019s lawyer, which was in keeping with his
\n\trole as legal adviser to the president of the United States.\n\t<\/p>\n
\n\televated Scalia to the U.S. Supreme Court, after having been confirmed by the U.S. Senate by a vote of 98-0 on September 17, 1986.\n\t<\/p>\n
\n\tGinsburg, the two of them on one occasion sang onstage as part of the opera\u2019s chorus. They had known each other since their days together on the United
\n\tStates Court of Appeals for the District of Columbia Circuit, where their odd-couple friendship had begun: Scalia was stout, outspoken, conservative,
\n\tItalian, and Catholic; Ginsburg was diminutive, soft-spoken, liberal, and Jewish. Yet their friendship bridged the judicial divide. Their families always
\n\tspent New Year\u2019s together. Justice Ginsburg described their friendship as that of \u201cbest buddies.\u201d Their exceptional bipartisan friendship was even
\n\tcelebrated in Derrick Wang\u2019s comic opera, succinctly entitled \u201cScalia\/Ginsburg.\u201d\n\t<\/p>\n
\n\tJustice Ginsburg. He reportedly taught Justice Kagan how to safely handle and discharge a firearm.\n\t<\/p>\n
\n\tOutspoken Critic<\/strong>
\n\t<\/h2>\n
\n\tvisionary; his detractors thought him too bombastic, blustering, and dogmatic. His carefully crafted prose could be both dazzling and snarky. Friend and
\n\tfoe alike agreed that his prose style was witty, entertaining, and eminently quotable, if often controversial.\n\t<\/p>\n
\n\tmeant the federal government could command you to purchase health care, then by the same reasoning would not being in the market for food vest the federal
\n\tgovernment with the power to require you to buy broccoli?\n\t<\/p>\n
\n\tIt means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.\u201d\n\t<\/p>\n
\n\town freedom of action, which is why Lord Acton did not say \u2018Power tends to purify.\u2019\u201d\n\t<\/p>\n
\n\targuments about fundamental principles in easy-to-understand terms.\u201d\n\t<\/p>\n
\n\tTextualist<\/strong>
\n\t<\/h2>\n
\n\tstandards or personal preferences played no role in legal interpretation for him. Quoting the landmark case of Marbury v. Madison <\/em>(1803), Scalia
\n\tdeclared that a judge\u2019s role was simply to \u201csay what the law is.\u201d He contrasted what the law is<\/em> to what one might prefer it to be.\n\t<\/p>\n
\n\tperhaps the Court) thinks it ought to mean.\u201d \u201cWords have meaning,\u201d Scalia declared in 2013, \u201cand that meaning doesn\u2019t change.\u201d\n\t<\/p>\n
\n\twere not dictated by the Catholic faith. He explained that for him, \u201cthe constitutionality of the death penalty is not a difficult, soul-wrenching
\n\tquestion. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example,
\n\thorse-thieving, as anyone can verify by watching a Western movie). And so it is clearly permitted today.\u201d\n\t<\/p>\n
\n\tway it could evolve, not by investing different meaning into timeworn words but rather to pass an amendment to the Constitution.\n\t<\/p>\n
\n\tConstitution\u2019s inception. But for Scalia, reinterpreting timeworn words of the Constitution is not made legitimate simply because the amendment process is
\n\tinconvenient. To his thinking, redefining what \u201ccruel and unusual\u201d means in order to abolish capital punishment would be unfaithful to the Constitution.\n\t<\/p>\n
\n\tcontains a \u201cright to abortion,\u201d but should be left up to the states to pass laws regarding abortion. In other words, the \u201cConstitution gives the federal
\n\tgovernment (and hence me) no power over the matter.\u201d\n\t<\/p>\n
\n\timpartially, then one should doff one\u2019s judicial robes and step down from the bench. But to \u201crewrite the laws he cannot do.\u201d\n\t<\/p>\n
\n\tLegacy—What He Said and How He Said It<\/strong>
\n\t<\/h2>\n
\n\tthanks to Scalia, judges \u201cat least begin with text and history\u201d and \u201cgive it genuine weight.\u201d Or as law professor William Eskridge put it: \u201cWith slight
\n\texaggeration, [Scalia\u2019s] motto might have been this: The text, the whole text and nothing but the text, so help me God!\u201d Writer Noah Feldman summarized
\n\ttextualism as \u201cthe idea of interpreting legal text as written, not as it should\u2019ve been written.\u201d\n\t<\/p>\n
\n\tcharter was intentional and meaningful. He respected separation of powers and federalism. He sought to cabin the actions of the legislative, executive, and
\n\tjudicial branches of government. He worked to preserve states\u2019 rights against federal government overreach.\n\t<\/p>\n
\n\thowever big, was to be dealt with by federal legislation. He sought to curb federal power, even that of federal courts. In an opinion regarding the right
\n\tto bear arms, he wrote that it was \u201cnot the role of this Court to pronounce the Second Amendment extinct.\u201d\n\t<\/p>\n
\n\ttearing down the wall of separation—thus being too soft on the establishment clause. On the other hand, others say he insufficiently supported exemptions
\nfrom laws that conflict with sincerely held religious beliefs. Scalia arguably distinguished to death a premier religious liberty case,\tSherbert v. Verner<\/em>, and some cite this as a symptom of his lukewarm support of the free exercise clause.2\n\t<\/p>\n
\n\tbenefits to a drug counselor fired for illegally using peyote, despite peyote being a sincere religious ritual. It continues to be cited as a huge setback
\n\tfor free exercise of religion. But in short that decision did say that states may accommodate otherwise illegal acts performed for religious reasons, but
\n\theld that states are not required <\/em>to do so by the Constitution. Of course that has proven to be a very problematic situation.\n\t<\/p>\n
\n\tfinest legal stylists \u201csince Oliver Wendell Holmes. Through his opinions, he exerted gravitational pull on the law, even when he lost.\u201d Justice Ginsburg
\n\twould concur: \u201cI disagreed with most of what he said, but I loved the way he said it.\u201d\n\t<\/p>\n
\n\twriting or asking pointed questions of counsel appearing before the Supreme Court. His colorful questions often cut to the heart of the legal issue
\n\tpresented. He often asked counsel the most number of questions—and he got the most laughs at oral argument.\n\t<\/p>\n
\n\tby a Republican legislature determined to have a Scalia clone conservative. Considering the number of headline-grabbing Supreme Court cases decided on a
\n\t5-4 basis, any appointee will likely change the direction of the Court.\n\t<\/p>\n","protected":false},"excerpt":{"rendered":"