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Obituary: Antonin Scalia  

2016-02-19 22:55:42|  分类: 默认分类 |  标签: |举报 |字号 订阅

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Obituary: Antonin Scalia

Always right

Antonin Scalia, Supreme Court justice, died on February 13th, aged 79


IF YOU were bold enough to ask Antonin Scalia questions, you had to be precise. Otherwise the bushy black brows would furrow, the chin would crumple and the pudgy, puckish body would start to rock, eager to get at you. Wasn’t he violently opposed to Roe v Wade, the abortion ruling? “Adamantly opposed, that’s better.” Did he have any guilty pleasures? “How can it be pleasurable, if it’s guilty?” Lesser lawyers who were vague in oral argument faced a barrage of sarcasm or, if he agreed with them, constant chiding to do better. (“That’s your strong point!”) Dissenting colleagues at the Supreme Court had their opinions described as “argle-bargle”, “jiggery pokery” and “pure applesauce”.

Words had meaning. He revered them and used them scrupulously, even in insult. The law was written in words, and those ideally laid down bright lines for everyone to follow. As a committed textualist, he wasted no time looking to legislative history, the purported purpose of a law or the comments of some egregious congressman. It meant what it said.

The beloved document, however, never promised perfect outcomes. In 1989 he found himself ruling (joining Brennan!) that it didn’t stop sandal-wearing bearded weirdos burning the American flag. (Personally, he would have clapped them all in jail; he longed to mark his opinion loudly with a rubber stamp, “Stupid but Constitutional!”) In several cases the constitution enhanced, rather than curbed, the rights of criminal defendants and terrorists. He did what he had to do. This made him a less predictable justice than many supposed. As for America’s constitution, speaking as the court’s originalist-in-chief, all that mattered was what its words meant when it was framed. He was in love with it; he was in awe of the men who wrote it; the late 18th century was a time when genius burst forth on the eastern seaboard, as it had in Periclean Athens. But for him the founding document was not “living”, not some organism endlessly adaptable to society, as Justice William Brennan, a distressingly liberal predecessor, used to think. It couldn’t be found suddenly to contain newfangled “rights” to privacy, as in Roe. It was dead! Dead! (Or perhaps, to be more tender and precise, “enduring”.) Its business was to block change, not advance it, and if it thereby obstructed something he himself, as a very conservative fellow, disliked, so much the better. Death-penalty cases he dismissed in minutes: the penalty was clearly constitutional. Church-and-state cases took no longer: the Framers had built no wall between them, and anyway, didn’t government get its authority from God? He would go home, to a Martini and a large dinner, and sleep like a baby.

More often, the document said nothing at all about some modern obsession: torture, abortion, discrimination. But then such matters, as Justice Scalia kept saying, were never meant to be settled by an unelected committee of nine; they were meant to be resolved by the people, through legislation. If he were a king, as his swagger and opera-singing occasionally suggested, he would stretch the constitution any way he wanted. In fact, as he admitted with a grin, it handcuffed him.

Not nearly enough, some people thought. His colleagues quailed when, in 1986, he first sat on the court as a brash 50-year-old whose experience had been mostly as a combative government lawyer: a justice who, in that sanctum of columns and deep judicial silence, was suddenly firing questions like grapeshot. (As the product of a Jesuit military academy, as well as an originalist, he loved to evoke cannon and muskets, and much enjoyed duck-shooting; he talked of tracking truth like a hunter in the forest, and was pleased to rule, in District of Columbia v Heller, that the Second Amendment did indeed mean that individuals had the right to bear handguns.) Though he was not the only New Yorker on the bench, he was the only spoiled-rotten Italian kid brought up proud and scrapping in Queens and familiar with rude Sicilian gestures. “Come right back at you!” was his motto, robed or not.

Family-fond (nine children!), gregarious and funny, he got on with his colleagues, and made a surprising best buddy of the court’s chief liberal, Ruth Bader Ginsburg. But he spared no ammunition in dissent. As early as 2003, when Lawrence v Texas struck down sodomy laws, the majority had “signed on to the…homosexual agenda”. In 2015, when the court narrowly saved Obamacare, “We should [call] this law SCOTUScare.” He never tried for consensus, not rating it anyway, and increasingly sat with the minority, though always the most colourful and quotable.

Facing down the Devil

He spent three decades on the court, relishing every minute, and liking it even better when he could kick shins in public. Looking back, what pleased him most was to see more attention paid to text, legislative precedent sliding out, and far more questions from the bench: all his doing. He could detect, though, no fading of the fashion to force the constitution ever further into modern life. After abortion and same-sex marriage, why not assisted dying? The stalwart Catholic in him was revolted at the thought. He knew for certain, though, that the Framers were on his side; the Devil was on the other; and that heaven was his portion, for he was always right. 

Dig deeper: Antonin Scalia’s death starts a political battle

Antonin Scalia, 1936-2016

A judge’s death starts a political battle

IT HAS been 11 years since an American Supreme Court justice has died while on the bench. And the death of that judge, Chief Justice William Rehnquist, had much narrower political and legal repercussions than the surprise demise of Antonin Scalia, the court’s longest-serving justice and most acerbic conservative, who has died in his sleep, promises to.

In 2005, George W. Bush was simply able to nominate John Roberts, another conservative, to succeed Mr Rehnquist. Barack Obama, now in the last year of his presidency, would love to nominate a justice in the mould of Mr Scalia’s fellow opera-lover, liberal Ruth Bader Ginsburg. Such an appointment could tip the balance on the court decidedly toward the left for a generation or more. But any nominee must be confirmed by the Senate, and with an intransigent Republican majority there, there is no chance Mr Obama would try to do that.

Moments after news of Mr Scalia’s death broke on February 13th, Ted Cruz tweeted that the Ronald Reagan nominee “was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next president names his replacement”. This presidential campaign ambulance chasing received a rebuke later in the evening from the current occupant of the White House. After calling Mr Scalia “a larger-than-life presence on the bench” and “a brilliant legal mind” who “influenced a generation of judges, lawyers and students” and will be “remembered as one of the most consequential judges and thinkers to serve on the Supreme Court”, Barack Obama pledged to submit a name for the senate’s consideration. “I plan to fulfil my constitutional responsibilities to nominate a successor in due time”, he said, “and there will be plenty of time for me to do so, and for the senate to fulfil its responsibility to give that person a fair hearing and a timely vote”.

The majority leader of the Senate, Mitch McConnell, declares he will do no such thing.“The American people? should have a voice in the selection of their next Supreme Court justice”, he said. “Therefore, this vacancy should not be filled until we have a new president”. The logic underlying Mr McConnell’s justification for inaction is rather dubious: it would counsel all presidents to sit on their hands when a justice dies or leaves the bench and await the results of the next election. The chair of the Senate's Judiciary Committee, Charles Grassley, said last night that it has "been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year". Yet the 20th century provides six examples of election-year confirmations, as Amy Howe of SCOTUSblog notes, including the unanimous vote confirming Anthony Kennedy in 1988. Mr Obama has 11 months left in office, nearly a quarter of his second term. If he were to bow to the GOP’s demands, The Nine would be The Eight for the better part of two straight Supreme Court terms. 

During the Republican presidential debate in South Carolina on February 13th, John Kasich of Ohio first joined Mr Cruz in saying that Mr Obama should defer the selection of Mr Scalia’s successor to the next president. But in his next breath, Mr Kasich suggested that if Mr Obama does submit a name, it should be one that could receive the unanimous support of senators from both parties. This may, in fact, be Mr Obama’s best strategy. It would be easy for GOP senators to scoff at an ideologically liberal nominee like Laurence Tribe, the Harvard law professor who once taught both Mr Obama and Mr Cruz. But if Mr Obama chose a nominee like Sri Srinivasan, whom he selected for the District of Columbia Circuit Court, America’s second-most powerful judicial tribunal, things would get interesting. Mr Srinivasan, who served in the solicitor general’s office under both George W. Bush and Mr Obama, has no strong ideological stamp. He was confirmed unanimously by the Senate in 2013, earning the support of Ted Cruz, Marco Rubio and all of their colleagues. It would not seem particularly fair-minded for the GOP to write him off as a viable Supreme Court nominee three years later. Yet if Mr McConnell sticks to his guns and follows Mr Cruz’s plea to “stand strong” and agree to confirm only a “principled conservative”, an already highly charged presidential campaign would be electrified by Senate Republicans refusing even to consider a widely respected nominee.    

Whatever impact Mr Scalia’s death has on the presidential race, it will undoubtedly have a profound effect on the current Supreme Court term. After decisions last June preventing the implosion of Obamacare and widening marriage laws to gays and lesbians nationwide, this year was supposed to belong to the conservative wing of the court. With cases involving the fate of affirmative action, abortion restrictions, religious liberty, voting rights, immigration and public-sector unions, Justice Scalia would have been almost certain to join his right-leaning brethren in a series of 5-4 defeats for liberal causes. With his death, Mr Scalia’s vote is extinguished, and four votes are not enough to overturn a lower-court ruling.

Raw judicial politics to one side, Justice Scalia leaves a giant hole in the seat he occupied for nearly three decades on the Supreme Court bench. He is well known for having had a tempestuous manner on the bench, which grew more pronounced in recent years. But his legacy as the court's staunchest defender of the jurisprudential theory of originalism and strictly textual approach to interpreting statutes is secure, as is his prickly but intellectually dazzling role as an opinion writer and questioner of lawyers during oral arguments. Whatever else happens, the Supreme Court's day-to-day business is about to get a lot less interesting, even as the politics around it heats up considerably.

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