Justice Antonin Scalia has passed away at the age of 79. Requiescat in pace.
I offer my condolences to the entire Scalia family, and to Justice Scalia’s extended family at the Supreme Court, notably his staff and clerks. I cannot improve upon the many excellent statements given today by leaders throughout the country. But as a teacher of the Supreme Court’s work, I can say without hesitation that, in my experience, no member of the Supreme Court is more interesting to my students than Justice Scalia. And no Justice’s opinions are more thought-provoking, and emotion-provoking, for a law student. That was also true of me when I began studying the Court and constitutional law. Justice Scalia was like a jurisprudence superhero. And reading his work profoundly influenced me in my desire to study, learn, and teach others about, the Constitution. I know that my students today can sense my admiration for him. Witty, engaging, insightful, controversial, erudite, clever, sharp, cutting, fun – and very often right – Justice Scalia was a singular, towering figure in his service to the Court, his country, and our beloved Constitution.
Because I cannot improve upon what others have said, I have simply included here some passages from my personal favorite opinion from Justice Scalia – his lone dissent in Morrison v. Olson, 487 U.S. 654 (1988):
“The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.”
“That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
“One can hardly grieve for the shoddy treatment given today to Humphrey’s Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice Taft’s opinion 10 years earlier in Myers v. United States, 272 U.S. 52 (1926)—gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70–page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution.”
“There are now no lines.”
“The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “'[t]he executive Power shall be vested in a President of the United States.'”
There is, I fear, a nasty fight ahead of us. It is my hope that our national political leaders, fighting in good faith over deeply held beliefs about the meaning of the Constitution and the future of the Supreme Court, will remember the distinction between law and politics and the unique role of the Court in the constitutional design. Our Nation, and its Constitution, will not be well-served by any fight that ultimately harms the Court as an institution built upon the rule of law. May Antonin Scalia rest in peace.