LETTER TO THE EDITOR: Some different reflections on Antonin Scalia

I respectfully dissent from Mr. Sigler’s laudatory tribute (on Feb. 28) [“Reflections on Scalia: the passing of a patriot,” Opinion page] to the memory of the late Supreme Court Justice Antonin Scalia. I, for one, will not miss him at all, for I believe that he was largely responsible for the Court’s unfortunate decline in stature to the point where it is now more politicized and less respected than at any time in our history — save for the Civil War years which immediately followed its infamous Dred Scott decision.

His most obvious legacy is that the Supreme Court, which once could plausibly be depicted as a temple situated above politics, where “Equal Justice Under Law” was the watchword, is now so mired in the political muck that he can’t be replaced anytime soon, even though the text of the Constitution that he professed to revere so much clearly specifies and mandates that it should be done forthwith. No one is more responsible for this sorry state of affairs than Mr. Scalia.

As Mr. Sigler observes, Justice Scalia incessantly claimed that his judicial philosophy was based on “textualism,” which bases legal interpretations on the precise text or the specific words of a law or the Constitution, and “original intent,” in which laws or the Constitution are to be interpreted in the context of the times in which they were written. Sounds good! But on closer examination, Mr. Scalia’s record would indicate that instead, his extremely conservative political philosophy and his staunch support for the Republican Party almost always trumped any so-called “judicial principles” that he claimed to espouse.

Leaving aside the fact that original intent is inherently hard to discern more than 225 years after the Constitution was written — after all, if James Madison and Alexander Hamiltion, or George Washington and Thomas Jefferson, couldn’t agree on essential constitutional issues, how can anyone say with absolute certainty today what the “original intent” of the framers of the Constitution was on any given question?

But if you believe, as Mr. Sigler apparently does, that Scalia was sincere in his belief in “textualism” and “originalism,” then, he must also believe that the men who wrote the Constitution in 1787 and the Bill of Rights in 1789 believed the following: that the First Amendment protects political spending as a form of free speech, since in politics, speech equals money; that corporations have free-speech rights (Citizens United); that corporations even have some rights of religious freedom (Hobby Lobby decision); that the Supreme Court has the authority to intervene in a national election by ordering a state to stop counting its votes (Bush v. Gore), a decision so mind-boggling in its specious and flimsy arguments that Mr. Scalia had to insert into his opinion a proviso that it would not be a precedent for any future Court rulings!

Justice Scalia’s friends, the Koch brothers, doubtless loved each of these rulings, but I believe that Madison, Hamilton, Washington and Jefferson have rolled over in their graves at each one. Mr. Scalia’s driving force was almost always political, not judicial, reasoning.

Mr. Sigler maintains that Scalia, being such a devoted constitutional purist, believed strongly in separation of powers and checks and balances, and that the “Constitution forbids one branch of government from encroaching upon or assuming the responsibilities of others.” If that was true, then (leaving aside Bush v. Gore), how does he explain Scalia’s last notable court vote, a 5-4 decision to stop the implementation of President Obama’s Clean Power Plan, even before any lower court had even conducted a hearing on the matter!?

If that is not “one branch encroaching upon the responsibility of another” — in a very aggressive manner, one might add — I don’t know what is. We can only hope that Scalia’s passing might mean that the United States government might be able to take action to help save the planet from critical and dangerous changes in our climate.

What about the Court’s disregarding the clear will and intent of Congress (when it overwhelmingly renewed the Voting Rights Act in 2006) by stripping out the key section of that great law in the Shelby County decision in 2013? That was clearly encroaching upon the responsibility of another branch. (This was the hearing in which Scalia infamously referred to this landmark law, which has done so much to reverse our sad legacy of denying the right to vote to African-Americans, as a “racial entitlement” law — a comment that produced audible gasps in the Supreme Court chamber.)

Of course, the biggest reason Mr. Sigler reveres Mr. Scalia is because of his ruling opinion in the Heller decision (2010), which, by ignoring the Court’s precedents on the issue, Mr. Scalia found in the Second Amendment an individual right to bear arms. In order to reach this decision, however, the justice whom Mr. Sigler praises as a “textualist” had to totally ignore — and essentially erase — the first 13 words of the amendment: “A well-regulated militia, being necessary to the security of a free state … .” How anyone who wrote that opinion can be fairly called a “textualist” who believes that the laws “say what they mean and mean what they say” is beyond me.

Just as in his Bush v. Gore opinion, Mr. Scalia again let his political prejudices rule and made up a legal argument to cover it.

Antonin Scalia was, by all accounts, a very charming man, a great husband and father, and a wonderful friend, even to his colleagues on the Court with whom he most often and vociferously disagreed.

But as a Supreme Court justice, he was a disaster, continually interrupting oral arguments so that he could hold stage (and demonstrate his great wit), writing sarcastic opinions that insulted those with whom he disagreed, and pushing the Court into becoming the nakedly partisan institution it is today, so that the American people no longer see it as the one branch of the federal government that they can trust. Largely because of him, it may soon be customary to see “Justice” written in quotation marks when we discuss the Court. His legacy may never be undone.

Daniel Pritchett
Dover

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