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Reflections on Justice Scalia on the second anniversary of his passing

by | Feb 13, 2018

By Dave Andrusko

Justice Antonin Scalia

Today, February 13, is the two-year anniversary of the passing of a giant of American jurisprudence, Supreme Court Justice Antonin Scalia. I’m sure each year I will be reminded of the contrast between the calmer days of 1986 when Scalia was confirmed 98-0 by the Senate and the battle by pro-abortion Democrats in 2016 to shoehorn in a pro-abortion replacement in the final months of the Obama administration.

To his great credit, Senate Majority Leader Mitch McConnell (R-Ky.) rightly said the nomination of Scalia’s replacement should and would be in the hands of the next president. The rest, as they say, is history.

For us, Scalia will always be remembered for his scintillating dissents. When pro-lifers read through so many Supreme Court decisions on abortion, decisions whose contempt for state legislatures was matched only by their indifference to the fate of unborn children, we could count on Justice Scalia to cut through the dithering and the deception and the duplicity.

Unlike many of his colleagues, he really did understand there are three branches of government and that the Supreme Court ought to pay appropriate deference to men and women elected by the people. Justice Scalia’s withering critiques of untethered judicial activism will be read by law students for generations to come.

I have no means scoured the Internet today to see what may have been written on the second anniversary. My local newspaper, the Washington Post, ran a lengthy analysis written by Prof. Richard L. Hasen. Since the Post loathed Justice Scalia, I assumed Hasen’s piece would be a hit job. It was, as were other posts I found via a quick Internet search.

In fact the Post was making a sort of in-kind contribution to Prof. Hasen, the opportunity to give himself kudos for his forthcoming book about Justice Scalia. In Prof. Hasen’s world of the University of California at Irvine, there is no end to the mischief Justice Scalia inflicted on….everything.

Then there is the piece written a year ago for USA Today. Richard Wolf provided a better, and far more balanced look back.

The purpose of Wolf’s column was to compare and contrast Justice Scalia with the federal appeals court judge pro-life President Donald Trump had nominated to take his place: Judge Neil Gorsuch. Of course, Judge Gorsuch went on to become Justice Gorsuch.

Wolf began with a 1989 Scalia speech that “made quite an impression on a first-year law student from Colorado named Neil Gorsuch.”

Scalia spoke on “The Rule of Law as a Law of Rules,” a legal philosophy in which judges limit their discretion by adhering to the letter of the Constitution, laws and court precedents.

“Limit their discretion”–not the first thought that comes to mind watching judges in general, justice in particular, practice their craft. And, of course, the pre-eminent example of judicial policy-making dressed up in “penumbras” and “emanations” is Roe v. Wade.

Wolf makes clear that Gorsuch was not a “clone” of Justice Scalia. (Who would want him to be?) They were, rather, “soul mates.”

Wolf didn’t reference a speech Gorsuch delivered just after Justice Scalia’s passing in 2016. In it he explained and defended the pivotal distinction between legislating and judging:

I want to … suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

The very antithesis, of course, was Justice Blackmun’s helter skelter approach in Roe (and its companion case, Doe v. Bolton). Blackmun was convinced he knew better, that he knew the future direction which (with his assistance) society would take.

Back to Wolf’s story which painted a very, very flattering profile of Judge Gorsuch. He also was very generous to Justice Scalia’s enormous legacy and ongoing influence, combining these sentiments in the following sentence:

“Ed Whelan, a former Scalia law clerk and president of the conservative Ethics and Public Policy Center, says the fact that Gorsuch’s originalism and textualism are widely regarded as mainstream today is ‘a testament to Scalia’s legacy.’”

Final thought. Wolf quoted Michael McConnell, who served alongside Judge Gorsuch on the 10th Circuit Court of Appeals before becoming director of the Constitutional Law Center at Stanford Law School, who said, “He is unfailingly charming and collegial and will try to build bridges.”

His superior intellect, Gorsuch’s brilliance in writing opinions, his “civility and courtesy” (as one friend told Wolf), and his deep devotion to interpreting the law, not making it–no wonder pro-abortion Democrats tried everything to undermine his nomination.

Categories: Supreme Court