Justice Antonin Scalia: Requiescat in Pace

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A very sad day.  Supreme Court Justice Antonin Scalia has died:



Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

U.S. District Judge Fred Biery said he was among those notified about Scalia’s death.

“I was told it was this morning,” Biery said of Scalia’s death. “It happened on a ranch out near Marfa. As far as the details, I think it’s pretty vague right now as to how,” he said. “My reaction is it’s very unfortunate. It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen before the next president is elected.”


Go here to read the rest.  Republicans in the Senate should refuse to confirm anyone nominated to his seat and hope that the next President will be a Republican.


A devout Catholic, Justice Scalia was an ardent and eloquent  defender of the Constitution.  A small sample of his brilliance and his passion:


“I cannot agree with, indeed I am appalled by, the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced–against overruling, no less–by the substantial and continuing public opposition the decision has generated. The Court’s judgment that any other course would “subvert the Court’s legitimacy” must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal. Both Dred Scott and one line of the cases resisting the New Deal rested upon the concept of “substantive due process” that the Court praises and employs today. Indeed, Dred Scott was very possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade. D. Currie, The Constitution in the Supreme Court 271 (1985) (footnotes omitted).

But whether it would “subvert the Court’s legitimacy” or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution [505 U.S. 833, 999] has an evolving meaning, see ante, at 848; that the Ninth Amendment’s reference to “othe[r]” rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to “speak before all others for [the people’s] constitutional ideals” unrestrained by meaningful text or tradition – then the notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be “tested by following” must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change – to show how little they intimidate us.

Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls “`political pressure’” by both sides of this issue. Ante, at 963. Maybe today’s decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception – a job not for lawyers but for political campaign managers – the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.

In truth, I am as distressed as the Court is – and expressed my distress several years ago, see Webster, 492 U.S., at 535 – about the “political pressure” directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account [505 U.S. 833, 1000] their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it. That cause permeates today’s opinion: a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls “reasoned judgment,” ante, at 849, which turns out to be nothing but philosophical predilection and moral intuition. All manner of “liberties,” the Court tells us, inhere in the Constitution, and are enforceable by this Court – not just those mentioned in the text or established in the traditions of our society. Ante, at 847-849. Why even the Ninth Amendment – which says only that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – is, despite our contrary understanding for almost 200 years, a literally boundless source of additional, unnamed, unhinted-at “rights,” definable and enforceable by us, through “reasoned judgment.” Ante, at 848-849.

What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001] judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.

* * *

There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court. “It is the dimension” of authority, they say, to cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution. Ante, at 867.

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer and staring straight out. There [505 U.S. 833, 1002] seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case – its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation – burning on his mind. I expect that, two years earlier, he, too, had thought himself call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.

It is no more realistic for us in this case than it was for him in that to think that an issue of the sort they both involved – an issue involving life and death, freedom and subjugation – can be “speedily and finally settled” by the Supreme Court, as President James Buchanan, in his inaugural address, said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S.Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue 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.”


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  1. I hope Justice Scalia goes straight to heaven. But I fear that that godless man of sin and depravity occupying the White House will nominate a baby murdering, sodomy sanctifying replacement.

  2. “Which is why the Republicans in the Senate must refuse to act on anyone he nominates to the Court.”

    With Mitch McConnell in charge, I wouldn’t hold out much hope for that.

  3. Well, that’s good news. Let’s hope he sticks to it. I. the event the next President is a democrat and republicans keep,control of the Senate, they need to do some Borking of their own.

  4. “I was nice enough to follow one lefty on twitter and I had to block him after he openly hoped Thomas was next. Pure evil.”

    But sadly, it is not surprising.

  5. God has abandoned us. Like Israel in the Old Testament, God was our champion but we rejected him and He has stepped back, as if to say “you think you got this? Well, OK, but I warn you, Man without God is a stupid, petty, and viscious creature.”

    Scalia has been a champion of the Republic. He and Thomas were the only sure non-Statists on the bench and now that mean-spirited, petty, stupid, short-sighted bastard pretender in the Oval Office gets to turn the Supreme Court into a purely rubber-stamp arm of the Emperor… Just in time for the immigration DAPA case to cement a president’s authority to ignore Congress and wright law.

    I don’t curse often but damn! This is a VERY bad day for the Republic and the convenience of it all is suspicious. If I wasn’t a religious man, I’d be looking at conspiracy.

  6. Take my advice — from experience — and avoid Mark Shea like the plague right now. Unless you REALLY want to ruin your Lent by experiencing extreme hatred for another human being.

  7. Catholics should organize and demand an autopsy. I don’t trust this administration one bit or the Democratic Party that has sided with every anti God issue their is. The shift in the Supreme Court to a majority anti-God and anti Constitution would be the end of the United States as the founders created.

  8. During a vacancy, what happens if the Supreme Court is tied 4-4?
    In Scotland, the decision goes against the judge in the chair. In France, the decision below is affirmed.

  9. Saw an article arguing that in quite a number of cases, the SC not taking up stuff for the next year actually benefits the President. I imagine that, at best, the President could hope to get a centrist and/or someone without a record or stated views that would cause controversy through the Senate. And if the Dems win both the Presidency and the Senate, the Court will definitely end up big time liberal.

    Doesn’t it then potentially benifit Republicans and conservatism in general more to have another centrist on the Court?

  10. Call it….more committed to “excentricities of each case” to quote West Wing. Maybe not fully committed to either living document or orginalist positions, potentially taking positions that lean towards either side depending on moment. Or even just having some views on one side and some from the other.

  11. Thinking of the most important of the cases coming up, the immigration case RE: DAPA, it isn’t really about immigration at all, it is really about executive power: “is the Executive Branch an equal power to the other two, the first among equals, or are the other two subordinate to it?”

    Without Scalia, the Court will aim for “first among equals,” which, in essence and due to a non-functioning, partisan legislature, is no longer a Republic.

    Without Scalia, Thomas stands alone, Kennedy, ever anxious to be the lap-boy for the winning side, will write a decision that cements Presidential power over law.

  12. A sad day indeed. The man was a lion, and forged anew and vitalized the old principle that the Court was designed to be the least dangerous branch because it merely was to decide cases according to the original public meaning of legal texts, not import subjective social views into the Constitution.

    Better yet, Scalia was a good Catholic, and could be regularly found at Old St. Mary’s at 5th and H in D.C., worshiping at the traditional Latin Mass he loved. Among his large group of children is an extremely bright and orthodox priest in the Arlington diocese, whom I once witnessed preach a beautiful and theologically penetrating homily on Our Lady… without notes and seemingly off the cuff.

    We can’t it say it often enough to the Left, which will prattle about the dire urgency of having a ninth justice appointed quickly– the role of the Senate is “advice and consent” and that we do not consent to whichever activist lawyer Obama intends to nominate.

  13. How appropriate that a just man bear the title “Justice”. May he rest in peace, and may his successor be as faithful.
    Apocalypse 2:17 comes to mind: “To him that overcometh, I will give the hidden manna, and will give him a white counter, and in the counter, a new name written, which no man knoweth, but he that receiveth it.”

  14. It was announced that the President will not attend Scalia’s funeral. Asked what he had to do that was so pressing, Wormtongue declined to say.

    Perhaps the Emperor thinks sitting in a Cathedral, under the unblinking eyes of the mural of Christ in Majesty, at the National Shrine, would be an unpleasant experience.

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