Before I get to the meat of my thoughts, let me just note with a profound sense of loss the sudden passing of Justice Antonin Scalia. Considering he was 79 years old, I suppose the word “sudden” might not be quite accurate from the standpoint of biological longevity. But in the battle for the life of the nation, his death is a surprising and altogether terrifying blow. Military metaphors abound; Wake Island, the Little Big Horn, Roark’s Drift or, please G-d, Bastogne. Antonin Scalia was one of the most consequential justices on the Supreme Court in at least a generation, not for what he did necessarily but for standing up for and not abrogating his pledge to the Constitution; something that tragically too many of his colleagues at all levels of the Judiciary have not.
“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.”
Appointed by Ronald Reagan in 1986 to succeed William Rehnquist, Scalia was the oracle of originalist and textualist thinking on the court. His opinions were tours-de-force of not only of legal wisdom but of wit, quite a bit of it scathing and some directed at his colleagues, including most memorably a withering broadside at Chief Justice John Roberts in King v. Burwell, the second Obamacare decision from 2015:
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.
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
Scalia was pivotal in many landmark cases, most recently in Citizens United v. FEC and DC v. Heller. He also was in the critical 5-4 majority ruling just last week to temporarily halt President Obama’s war on coal with his so-called “clean power plan” which would have decimated cheap American energy production. He’ll have a posthumous last hurrah next June with affirmative action in Fisher v. University of Texas, which many hope will deal a mortal blow, if not put the nail in the coffin to the policy. However, as is typical of the Left, his comments during oral arguments last December once again made the left apoplectic, as the media completely distorted and lied about the context of what he said:
Carrie Severino, chief counsel for the conservative Judicial Crisis Network and a former clerk to Justice Clarence Thomas, defended Scalia, saying he wasn’t implying black students are inferior.
“What Justice Scalia is referring to is the ‘mismatch theory’ popularized by Stuart Taylor and Richard Sander in their book,” she said. “The idea is that if a student is admitted to a school they are not academically prepared for then they will not perform up to their own potential. This is a theory — contested of course — but I don’t want people to get the idea that it means that all black students are not as smart as white students, or even that they are not as well prepared across the board.”
Scalia was apparently referencing a brief filed by Sander.
“Students with an interest in science who are admitted to a very competitive school via a large preference tend to drop out of the sciences at a much higher rate than do otherwise similar students who attend somewhat less competitive programs,” the brief said. “Competition mismatch appears to be a major factor in the low rate at which African-American students become scientists, despite high levels of interest in the sciences.”
Once again, 320 million Americans will wait to see how eight (Lord forbid nine) flawed people in black robes will decide how their lives will change for better or worse. Along with affirmative action, there are several critical decisions slated for this June including abortion, unions, “one person one vote” among others. That our system of government has been turned upside down and given the Judiciary immense power that it was never intended troubled Scalia greatly:
“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
And this brings me full circle to the immediate threat we face with Scalia’s passing. If Mitch McConnell allows President Obama to pick a justice to fill the vacancy, he will doubtless choose a fellow ideological traveler who will trash the Constitution or twist it for political expediency to legislate from the bench along with Ginsburg, Sotomayor, Kagan and Breyer (and more than likely Kennedy and Roberts). If you loved Eric Holder as Attorney General, you ain’t seen nothing yet – and for life.
If there is any sanity left in the GOP – and I have strong doubts about it – McConnell will not allow any appointee to come up for a vote, and will make sure to leave the Senate in full session and declare no recesses whatsoever. Doubtless Obama will try and pull some sort of a fast one by declaring the Senate in recess when it isn’t and illegally appointing someone.
For nearly 30 years, Antonin Scalia held the line and defended the Constitution and the rule of a just and stable law as best he could. Perhaps in the end, he was overwhelmed and could hold out no longer. I pray that his death is not a harbinger of doom but a clarion call to those who represent us to resist the onslaught on our nation and our values as Scalia did. May the next occupant of his seat on the court be just as resolute as he was.
Fare thee well, Nino. RIP.