For someone who abhors rabid partisanship, an election year—especially a presidential election year—is already nightmarish. Add in the death of Supreme Court Justice Antonin Scalia and you understand why right now I’d much rather just shut everything off and cuddle with the furry one.
What’s most troubling in this hyperpartisan atmosphere is the lack of respect and decorum. A man just died—yes, an often-controversial jurist I seldom agreed with (and that I’m sure I’ve called bat-crap crazy a few times), but he was still a man who mattered in the lives of those who loved him; the least he’s due is a temporary cessation of the partisan carping that’s come to mark American political life.
Reading online comments on stories about Scalia’s death has been troubling, especially when those who call for some respect in death to be given to someone they might not have agreed with in life are so often shouted down by those who prefer petty rancor. But hey, sure, let’s throw a few more epithets at each other.
Yet I come not to bury Scalia, but to praise his often-snarky turn of phrase, usually the most fun part of a Supreme Court ruling with a dissent written by Scalia. In reading some of those very dry opinions, we might fall asleep if not for wordsmiths like him.
In his dissent last year in Obergefell v. Hodges, which legalized same-sex marriage, he noted of the majority opinion written by Anthony Kennedy:
“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”
Funny … that’s one of the things a lot of us look for in a Scalia opinion (because some of us are amused by such things).
In that same dissent, Scalia wrote:
“Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”
How often nowadays do hippies get a mention in Supreme Court filings? Though it might have been a tense few days in the Scalia household; it might not have been quite prudent to say what he did, though his wife seems the understanding type.
We can certainly thank Scalia for that bit and overlook any silly extravagances he perpetrated himself … especially when they crack us up. His close friend and fellow justice, Ruth Bader Ginsburg, once said of him, “He can make even the most sober judge laugh.” If she liked him, he can’t have been all bad …
In a concurring opinion in the 1991 Barnes v. Glen Theatre ruling that, while totally nude dancing was a form of expressive activity, enforcement of Indiana’s laws to prevent same was justified, Scalia wrote,
“The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome [sic] to display their genitals to one another, even if there were not an offended innocent in the crowd.”
Remind me never to visit the arena now known as the RCA Dome. Some things can’t be unseen. Hoosier genitals are not on my must-see list.
In court rulings and in lectures and interviews, Scalia was much better-known for his sarcasm and biting commentary, which was on full display in PGA Tour v. Martin:
“I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a fundamental aspect of golf.”
Gosh, it’s so terrible that Casey Martin‘s case wasn’t consequential enough for him. But at least he was able to wring some snarkasm from it. Nah, he didn’t like playing to an audience at all …
“Life is too short to pursue every human act to its most remote consequences; “for want of a nail, a kingdom was lost” is a commentary on fate, not the statement of a major cause of action against a blacksmith.”
In today’s ultra-litigious society, such sage advice is just CRAZY!
Scalia wasn’t above borrowing words from other eras, such as “jiggery-pokery” and “pure applesauce” (sorry, Peter Brady flashback) in his King v. Burwell dissent last year on the Affordable Care Act, also remarking that “words no longer have meaning,” a lament he made more than once through the years.
Well, darn … what am I supposed to do now? Words are kinda my job …
Of course, we could join the scrum and accuse each other of making hay out of Scalia’s death (and please, more conspiracy theories, please … just can’t get enough of those), and forget that the president and Senate were elected to do their jobs. One aspect of the president’s job is to make appointments when the need arises; the Senate is to confirm, or not, those appointments.
The administration has already ruled out a recess appointment this week (the Senate is on break till Monday); Mitch McConnell and others have promised to hold up any nomination, in hopes that a Republican will be elected president.
In the past several years judicial appointments have become a political football, with the other team waiting for a fumble or a way to delay the game. My take: Get the refs in and cite all these people for unsportsmanlike conduct. Just do the job, please. It’s bad enough that lower federal courts have so many vacancies (as of Sunday, a total of 81, not counting the Supreme Court); let’s not let Scalia’s seat remain open indefinitely just for the sake of politics.
Lyle Denniston of SCOTUSBlog summed up the controversy surrounding the idea of appointing Scalia’s successor:
“The bottom line is that, if President Obama is to successfully name a new Supreme Court justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.”
Sadly, I think the Senate may be beyond the capacity for embarrassment.