Tag: Antonin Scalia

Quote of the Day: What are Women?


“Words have meaning. And their meaning doesn’t change.” – Antonin Scalia

“Feminists have convinced themselves that any difference between men and women is oppression and that women in the United States are an oppressed minority. This is such a lie. American women are the most fortunate class of people who ever lived on the face of the earth.” – Phyllis Schlafly
“Most retronyms are gleaned from high-technology and scientific advances that bring about a modification of an original item. Think of it as a backward glance that signifies progress (film camera, broadcast network, propeller airplane).” – Lyrysa Smith

Christopher Scalia joins the podcast to discuss a recent volume he edited: a collection of essays by his late father Justice Antonin Scalia, titled “On Faith: Lessons From an American Believer.”

As has become an annual tradition in the Trump era, the end of another Supreme Court session brings rumors of Justice Anthony Kennedy’s impending retirement. In this episode, Richard Epstein looks at Justice Kennedy’s legacy, considers whether lifetime terms on the Supreme Court are justified, and looks at the future of a post-Kennedy court.

In the aftermath of the Parkland shooting, Richard Epstein provides his legal analysis of where Second Amendment jurisprudence went wrong and explains what policy options might actually help to ease gun violence — and why real solutions are devilishly hard to come by.

Scalia’s Legacy


I knew the late Justice Antonin Scalia a little, and like millions of others, I was an avid fan of his jurisprudence, the great bulk of which he produced after I was no longer a law student, so much the worse for me.

What do I have to do with it? Nothing, except that reading opinions as a law student was often like trying to swallow great bowls of sawdust – without milk. Very few judges can write well. On the rare occasions when I came across a decision by Learned Hand, I would practically weep with gratitude for his clear, forceful prose.

Antonin Scalia was not just a great stylist for a jurist, he was a great writer for a writer. Most of his work though, obviously, was in the form of opinions and dissents, and even the best Supreme Court opinions are required to include copious citations in the text, which, for the general reader, can be distracting speed bumps. That’s one of the many reasons to rejoice at a new collection of Scalia’s speeches.

Richard Epstein analyzes the confirmation hearings of Supreme Court nominee Neil Gorsuch, compares and contrasts the judge with the late Justice Scalia, and considers the potential demise of the filibuster.

Richard Epstein weighs the dangers of a Donald Trump presidency against those that would attend a Hillary Clinton Administration.

Scalia Maligned



The death of Antonin Scalia has set up a nasty battle over who shall occupy his vacant seat on the Supreme Court. The battle does not just involve the endless political skirmishes now taking place between the White House and the Senate. It also extends to the larger philosophical debate over the constitutional theory of originalism, with which Justice Scalia was so closely associated. Few of the attacks on originalism and Scalia have been as tasteless and ignorant as “Looking Back,” the broadside that the journalist Jeffrey Toobin recently published in The New Yorker.

It is evident that Toobin is out for blood from his opening salvo: “Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.” This gratuitous slur on Scalia’s integrity is odd. One of Scalia’s most prophetic warnings was that the defenders of the “living Constitution” seek to remove key issues, such as gay marriage, from the ordinary political process, and in so doing necessarily politicize the Court. In Scalia’s view, once that happens, people have to be ever more concerned about the political inclinations of the justices, because fidelity to text will not anchor them to positions that are contrary to their own philosophical predilections. The point is one that classical liberals like myself have to take seriously. For example, no matter how much we think that protective tariffs are a source of economic stagnation, it is beyond dispute that the founders gave Congress the power to regulate foreign commerce in order to allow it to erect tariff walls around the United States.

Apple, Originalism, and the All Writs Act


iPhone_6_PLUS_preview_MG_1875Originalism as a method of judicial interpretation is now irrelevant, some claimed after the passing of Justice Antonin Scalia. It never really worked and now it’s destined to fade away.

Tell that to federal magistrate judge James Orenstein in New York, who yesterday ruled for Apple in a case in which the feds had invoked the All Writs Act to demand the unlocking of the phone of suspected drug dealer Jun Feng (the case parallels the far higher-profile case of the San Bernardino killer’s iPhone).

The Act grants federal courts broad power to issue “necessary or appropriate” writs, which the government would like to interpret to include types of writ Congress has declined to authorize explicitly even after considering doing so. In Judge Orenstein’s reasoning, it matters very much what the All Writs Act was understood to mean at the time of its passage in 1789.

The Quiet Justice and the Constitution


clarence-thomasAnyone who follows the actual work product of the Supreme Court knows that oral argument has no correlation to quality of legal reasoning or sharpness of thought. Focusing on whether Justice Thomas has or has not asked questions is a red herring.

What counts is not questions from the bench, but the written word of the opinions. For many decades, Justices rarely asked questions and oral arguments would often go long stretches without any questions. In fact, it was Justice Scalia’s arrival that spurred the no-holds-barred questions and answers that are a feature of today’s oral arguments.

But the appellate review of the Supreme Court does not serve the same function as trial courtrooms, where the lawyers and their antics dominate the proceedings. The Supreme Court focuses mostly on the written briefs of the lawyers, the text and history of the Constitution, and its own precedents. The lawyers contribute very little in oral argument to the Supreme Court’s deliberations.

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Earlier today, I published what I believe to be an ironclad argument as to why I should be the next associate justice of the Supreme Court of the United States. The argument can be summarized thusly: 1. There are no real requirements for the Court, and so I am not disqualified. And I am, in […]

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It Isn’t Just the Presidency at Stake


Screen Shot 2016-02-24 at 7.57.26 AMI’ve seen it posted in various places that establishment GOP types are more afraid of Cruz than Trump. Having spent the last several days at meetings that were nothing but establishment GOP, I can report that is absolutely backwards. They don’t fear Trump because they think he will win; they fear him as the GOP nominee because they don’t see how can possibly avoid losing.

Of the remaining candidates, the establishment likes Rubio best, because they believe he has the greatest chance of winning, as he is personally likeable and has a positive message that could appeal beyond the base.  Cruz is not liked by the establishment, but all recognize that he is smart and conservative. They believe they would have a tough time winning the general election were he the nominee – they worry that his appeal is now narrowed to only the most conservative/evangelical voters and so won’t have broad enough support — but they think they could win.

Why the focus on winning? Because whichever party prevails in the presidency will likely control of the Senate and, by extension, the balance on the Supreme Court.