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February 15, 2016

Justice Antonin Scalia — Farewell Nino

Our Republic has lost a champion of Liberty and Rule of Law.

Our Republic has lost one of its most articulate defenders of Liberty and Rule of Law: Justice Antonin Scalia.

“Nino” to his close friends, Justice Scalia was the greatest Supreme Court jurist of modern times, and one of the greatest of all time. To say he will be missed is a gross understatement. In the words of his friend Paul J. Larkin Jr., a fellow at The Heritage Foundation, “More than 100 men and women have been justices of the Supreme Court. All decided the outcome of individual cases and made small changes in the law [but few] changed the course of the law. … Scalia taught us that the law matters, that the law is the written word, and that the written word takes its meaning from how history understands it, not what we wish it might mean.”

Justice Scalia was nominated by President Ronald Reagan in 1986 and affirmed soon thereafter by the Senate. He adhered strictly to the doctrine of constitutional originalism — the standard our Founders prescribed, reading the plain language of the U.S. Constitution for its original intent, then applying the historical context of the drafters when the plain-language meaning is not readily apparent. His constructionist interpretation led to a modern juridical revolt against activist judges, those who, as Thomas Jefferson warned, would treat “the Constitution [as] a mere thing of wax … which they may twist and shape into any form they please.” Scalia was an effective check on those activists endeavoring to usurp individual freedoms by promoting the errant notion of a “living constitution,” treating it as “a mere thing of wax.”

As a result of the more-than-century-long assault on the Constitution by activist and statist judges, Scalia’s “back-to-the-future” return to traditional adherence to its original meaning was seen by many as “radical.” On the contrary, it was simply rational — a quality the Supreme Court is in short supply of these days, especially now that it has lost its chief exponent of rationality.

The best way to pay proper tribute to Justice Scalia is by citing some of his public remarks and opinions from the bench (cases are noted below) in affirmation and defense of our Constitution.

“Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, ‘contra bonos mores,’ i.e., immoral. (Barnes v. Glen Theatre, Inc., 1991)

"To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” (Adarand Constructors v. Pena, 1995)

“The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” (Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 1996)

“A Bill of Rights that means what the majority wants it to mean is worthless.” (2000)

“It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.” (2003)

“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.” (2005)

“If you think aficionados of a ‘living constitution’ want to bring you flexibility, think again. … If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.” (2005)

“The argument of flexibility goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.” (2006)

“Undoubtedly some think that the Second Amendment is outmoded… [W]hat is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” (District of Columbia v. Heller, 2008)

“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.” (2011)

“A man who has made no enemies is probably not a very good man.” (2012)

“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved… 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. I dissent.” (King v. Burwell, 2014)

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves… The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” (Obergefell v. Hodges. 2015)

Justice Scalia’s death will change the dynamic of the current presidential primaries — indeed, the entire election cycle. We’ve argued before how important this election really is when it comes to nominations. That prediction is now more acute.

When Obama nominates a new court candidate and attempts to ram that nominee through the Republican-led Senate, that will create considerable discord. Senate Majority Leader Mitch McConnell has stated he opposes confirming a new justice until the election because “the American people should have a voice in the selection of their next Supreme Court Justice.” Indeed, in more than eight decades, no president has nominated a candidate for the Supreme Court in a presidential election year.

Within hours of Scalia’s death, Democratic National Committee CEO Amy Dacey insisted, “Barack Obama, has been very clear: He’s going to fulfill his constitutional obligation and nominate our next Supreme Court justice. … [C]onservatives in Congress should allow President Obama to do what is his right and responsibility — name the next Supreme Court justice.”

Why? Obama has not “fulfilled his constitutional obligations” in any other respect, and he has never honored his oath “to Support and Defend” our Constitution and the Liberty it enshrines.

It is notable that, of the 16 presidents who served in the Senate, only one, Barack Obama, endeavored to filibuster a Supreme Court nomination — the 2006 nomination of now-Justice Samuel Alito. In 2007, more than 18 months before the 2008 presidential election, Demo Sen. Chuck Schumer declared, “We should not confirm any Bush nominee to the Supreme Court.”

As for Justice Scalia himself, he once remarked, “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25–26 years. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.”

Today, our thoughts and prayers are with Justice Scalia’s wife, Maureen, their nine children, and the rest of Justice Scalia’s loved ones, as we remember and honor his legacy. Nino, you will be missed: “Well done, good and faithful servant.” (Matthew 25:23).

(Publisher’s Note: In an earlier edition of this commentary, Justice Antonin Scalia’s first name was auto-corrected to “Antonio” and overlooked on final edit. We regret the error.)

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