Happy Birthday, Nino!
Tomorrow is Justice Antonin Scalia’s 75th birthday, so I hope you’ll join me in wishing him a happy one. And hey, what's your favorite Scalia dissent? (I vote for Roper v Simmons, where he sticks it to his colleagues for the "sophistry" of citing foreign law in constitutional cases).
I particularly want to extol the good Justice, given that Linda Greenhouse, who covers – and I use the term loosely – legal affairs for the NYT, has chosen the occasion to pen a gratuitous attack on Scalia. In the Times opinionator blog, Greenhouse writes that Scalia’s birthday “doesn’t promise to be a happy one” because “Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little.”
The rationale for this bizarre assertion is that Scalia’s “bomb-throwing” dissents rarely influence future decisions. Except Scalia doesn’t write dissents to persuade his fellow justices. As he explained himself in a 2008 interview:
Who do you think I’m writing my dissents for? I’m writing for the next generation and for law students . . . But I’m not going to persuade my colleagues and I’m not going to persuade most of the federal bench. They’ve had this so-called living Constitution stuff, you know, from the time they were in law school. That’s not going to change. But maybe the next generation will see the advantages of going back to the way we used to do things. (ht Volokh Conspiracy)
By this standard, Scalia's career on the bench is a smashing success. He has inspired a whole generation of lawyers.
But for the record, Greenhouse’s assertion that Scalia has accomplished little” is utterly laughable. As the WSJ law blog points out: “he alone is largely responsible for the 'Originalism' movement, which, some would argue, provided the court an entirely new lens through which to view the Constitution.” And in fact, Scalia’s dissents on issues such as the unitary executive, partial-birth abortion, and sixth amendment confrontation rights have eventually commanded majorities. Not to mention Scalia’s majority opinion in the ground-breaking Heller case that restored Second Amendment rights.
I suspect that Greenhouse and other leftwing commentators only wish that they had a voice on the bench half as eloquent as Scalia's.
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Comments :
May '10
Re: Happy Birthday, Nino!
Greenhouses are notoriously full of hot air.
Happy birthday, big guy!
Jan '11
Re: Happy Birthday, Nino!
Scalia is a public service. Not even in their most arrogant moments would anyone (including me) imagine themselves smarter or wiser than Scalia. He's the ultimate balloon-popper.
I enjoy reading his arguments, and I envy his skill. It's a delight to observe virtue and intelligence combined in one thinker.
Happy Birthday!
Re: Happy Birthday, Nino!
You know, Adam, that might be a great book. "The Best Dissents: Antonin Scalia's Greatest Hits" or something like that.
Jan '11
Re: Happy Birthday, Nino!
Among my favorites is from McCreary v ACLU;
"Nothing stands behind the Court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the Court's own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century... And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today's majority) have, in separate opinions, repudiated the brain-spun "Lemon test" that embodies the supposed principle of neutrality between religion and irreligion."
Re: Happy Birthday, Nino!
Klaatu, McCreary is a great choice - nothing is quite so fatuous as the Court's Establishment Clause jurisprudence. The "brain-spun" Lemon test is such an apt description!
Dec '10
Re: Happy Birthday, Nino!
Here is the elequent conclusion of his heroic dissent in Planned Parenthood v. Casey:
[B]y foreclosing all democratic outlet for the deep passions [abortion] arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Amen.
Re: Happy Birthday, Nino!
My favorite? That would be the dissent in Casey, which Denver Gentleman quotes above. But my second choice would be Justice Scalia's dissent in the 2003 case, Lawrence v. Texas.
When Justice Scalia issued this dissent just seven years ago, he was derided as alarmist. But since then? The courts have proven utterly relentless in their assault on heterosexual marriage. Justice Scalia, courageous--and right. Yet again.
May '10
Re: Happy Birthday, Nino!
Can't find anything in a quick Google search, but does anybody remember such an incident?...
Scalia interrupted when there was a disagreement as to how to refer to the baby during a description of partial-birth abortion before the Court. He said in the darkest humor something like, "Well, the head is a fetus, but the torso and limbs are a baby." I'm almost sure I heard this in a radio description of proceedings. If so, that's the most brilliant take-down ever of the "magical birth canal theory," in which--presto!--the birth canal bestows human life upon the fetus.
May '10
Re: Happy Birthday, Nino!
Georgia v. Randolph is a minor Fourth Amendment case, but Justice Scalia's brief dissent is a gem. You can't help laughing as he tartly takes Justice Stevens to task for misapprehending or misrepresenting the point of Originalism. His dissent is a short, distilled classic that displays his flair for the language and his devastating wit. It's a must-read and will take only a few minutes.
Nov '10
Re: Happy Birthday, Nino!
75?! He doesn't look a day over 60!
Jan '11
Re: Happy Birthday, Nino!
Not to hijack the thread, because I do want to follow the dissents, but I wanted to comment on Linda Greenhouse's utterly mean and petty attack. It was totally inappropriate.
Reporting on the Supreme Court presumes the ability to translate legal concepts to a broad audience. And yet, the two most quoted Supreme Court reporters are Greenhouse and Dahlia Lithwick, both of whom write to a small, liberal, and unwaveringly feminist perspective.
Good thing that Greenhouse isn't on the Court, where Scalia would demolish her narrow world. She has the luxury of throwing stones from the outside ... otherwise known as journalism at the New York Times.
May '10
Re: Happy Birthday, Nino!
To "progressives" like Linda Greenhouse the accomplishments of a federal jurist are most likely limited to how many rights they have created out of the "living" Constitution. So of course she would observe that Justice Scalia has accomplished relatively little.
Oct '10
Re: Happy Birthday, Nino!
May he have 75 more.