February 13, 2016


Supreme Court Justice Antonin Scalia dead at 79 (Eileen AJ Connelly, February 13, 2016, NY Post)

Associate Justice of the Supreme Court Antonin Scalia was found dead Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa. MySanAntonio.com said he died of apparent natural causes.

Hard to see the GOP approving a nominee before the UR leaves office, which means all the candidates are going to have to say who they'd nominate.

Trump's best answer is, of course, Ted Cruz.  Indeed, Cruz would be a justice very much like Mr. Scalia, one who would write only for himself and be unable to get the rest of conservatives to join him.

Jeb and John Kasich should suggest guys closer to John Roberts, who has been brilliant at making the Court more bipartisan and, therefore, made its rulings seem to have greater legitimacy.

Supreme Confidence : The jurisprudence of Justice Antonin Scalia. (MARGARET TALBOT, 2005_03_28, The New Yorker)

Lining up to hear a Supreme Court Justice speak is more like lining up for a rock concert than you might think. This is especially true if the speech is on a college campus and the speaker in question is Justice Antonin Scalia. Ruth Bader Ginsburg is a favorite on the feminist lecture circuit; Clarence Thomas has vivid stories of growing up as a "nappy-headed little boy running barefoot" around Pinpoint, Georgia; Sandra Day O'Connor is the preferred Justice at awards luncheons where crystal figurines are handed out. But Scalia is the most likely to offer the jurisprudential equivalent of smashing a guitar onstage. He might present a scorching opinion that will get him in trouble back in the Court--as he did in January, 2003, when he lambasted judicial efforts to eliminate the phrase "under God" from the Pledge of Allegiance. (Later that year, the Court agreed to take on the issue, and Scalia had to recuse himself.) Or he might stun a pompous liberal with a bearish verbal swat; recently, when a questioner criticized Scalia's judicial approach by invoking Alexander Hamilton, Scalia retorted, "Hamilton, sir, was writing the Constitution, not interpreting one." He will be funnier, more sarcastic, and more explicit about his beliefs than most people expect a Supreme Court Justice to be. And curiosity about him--what he will say or do next--has only grown now that there is talk that he could become Chief Justice, replacing William Rehnquist, who is suffering from thyroid cancer. President Bush has said that, of the current Justices, he admires Scalia and Thomas the most, and Scalia, who is sixty-nine, is recognized, even by his ideological opponents, as the singular conservative mind of the Rehnquist Court.

On a damp, cold afternoon in November, Scalia spoke at the University of Michigan Law School. Two hours before the lecture, the line extended down the steps of the school's auditorium. Many in the crowd were liberal students--this was Ann Arbor, after all--who were nursing a grudge over Scalia's snappish minority opinion in Grutter v. Bollinger, a 2003 case in which the Court upheld an affirmative-action program at Michigan Law School. The school had argued, and the majority had agreed, that having a "critical mass" of minority students offered an "educational benefit"--an improvement in "cross-racial understanding." But Michigan's "mystical 'critical mass' justification for its discrimination by race challenges even the most gullible mind," Scalia wrote in his dissenting opinion. "The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions." Moreover, he went on:

This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by bar examiners (Q: Describe in five hundred words or less your cross-racial understanding). For it is a lesson of life rather than law--essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.

Outside the auditorium, a dozen or so students marched in a ragged oval, chanting, "Two, four, six, eight, separation of church and state!"--not the most original of slogans but one that they thought appropriate for a Justice who so often stresses the deep and redeeming religiosity of the American people. One student had drawn a poster of Scalia as Oscar the Grouch, Such mockery does not seem to bother Scalia; his certainty runs so deep that he views detractors with mild amusement. And he revels in intellectual combat. Every year, he hires at least one liberal clerk, to give him somebody to spar with. Sister Helen Prejean, the anti-death-penalty crusader, recalls in her recent book, "The Death of Innocents," that she once approached Scalia in the New Orleans airport to say that she was planning to attack his views in print. "I'll be coming right back at you," he said, jabbing his fist in the air.

In Conversation: Antonin Scalia : On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy ("I don't"). (Jennifer Senior, Oct 6, 2013, New York)

Had you already arrived at originalism as a philosophy?

I don't know when I came to that view. I've always had it, as far as I know. Words have meaning. And their meaning doesn't change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn't mean when the people voted for it--frankly, you should ask the other side the question! How did they ever get there?

But as law students, they were taught that the Constitution evolved, right? You got that same message consistently in class, yet you had other ideas

I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, "I better reexamine my position!" I probably believe that the worst opinions in my court have been unanimous. Because there's nobody on the other side pointing out all the flaws.

Really? So if you had the chance to have eight other justices just like you, would you not want them to be your colleagues?

No. Just six.

That was a serious question! 

What I do wish is that we were in agreement on the basic question of what we think we're doing when we interpret the Constitution. I mean, that's sort of rudimentary. It's sort of an embarrassment, really, that we're not. But some people think our job is to keep it up to date, give new meaning to whatever phrases it has. And others think it's to give it the meaning the people ratified when they adopted it. Those are quite different views.

You've described yourself as a fainthearted originalist. But really, how fainthearted?

I described myself as that a long time ago. I repudiate that.

So you're a stouthearted one. 

I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used "fainthearted" in reference to was--

Flogging, right? 

Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that's stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says--Whack! [Pounds his fist.]--STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL ... [Laughs.] And then somebody sent me one.

A Justice Alone, Even if Surrounded : a review of 'Scalia: A Court of One,' by Bruce Allen Murphy (DWIGHT GARNER, JUNE 10, 2014, NY Times Book Review)

Mr. Murphy is impressed by Justice Scalia -- the wit and erudition behind his bushy eyebrows, his charm and drive. He is less impressed by Justice Scalia's jurisprudence, which he finds to be nakedly partisan and overly informed by religious stricture, nearly to the extent that the justice would have us live in a theocracy. "Be fools for Christ," Justice Scalia told a religious audience in a 2005 speech. "And have the courage to suffer the contempt of the sophisticated world."

Mr. Murphy also finds his subject to be perversely, almost purposefully, ineffectual. By alienating even the other conservatives on the court with his bullying tone and withering dissents, Mr. Murphy says, Justice Scalia has frittered away opportunities to wield genuine influence by building consensus. He has become, as this book's title has it, a solo artist, a court of one.

VIDEO: Justice Profile: Antonin Scalia (C-SPAN, 1/03/01)

In an overview, Professor Brisbin, author of the 1997 book, Antonin Scalia and the Conservative Revival, talked about Justice Scalia's path to and tenure in the U.S. Supreme Court. Mr. Bernstein, a 1987-88 law clerk to Justice Scalia, talked about his work habits and interests on and off the Court. Portions of other interviews and Justice Scalia speeches were shown.

Posted by at February 13, 2016 5:19 PM