Not always, but more often than not, I’ve disagreed with Antonin Scalia’s fiercely conservative judicial opinions, just as I disagree in principle with his deeply felt conviction in the philosophy of constitutional originalism. It’s not that my opinion on the subject matters much, or at all, but I do have my thinking moments, and in those moments it occurs to me that a document approaching its 250th birthday, serving as guidebook and center of a nation that is similarly aged, during a time in history during which the world has changed more profoundly than any equivalent in human history, merits some reflective interpretation of how monumentally different our nation, and our perspective, has changed over those years.
But I digress. As I’ve said earlier this week, while Scalia is no moral or philosophical role model, I have a deep appreciation for his devilish mind, especially as an often gleeful contrarian who deeply enjoys using wordplay to elevate, skewer, and occasionally just entertain, as well as respect for some–but certainly not all–of his personal opinions, if for no other reason than they are often presented so wonderfully. Many of Scalia’s most scathing opinions could have been expressed in terse, coldly efficient language, but instead the man had a penchant for verbal knife-twisting that will be missed, especially compared to milquetoast lightweights like fellow conservative Clarence Thomas. And while I am certain that the America I long to see becomes more possible without Scalia at the bench, I mourn for the loss of his keen and inimitable intellect and irrepressible style.
With that in mind, here is a selection of his “greatest hits,” so to speak. We’ll start with one of my favorites, which I happen to agree with very much.
“If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged.”
And I’ll follow with one of his most wrong-headed, on Citizens United v. FEC, which granted corporate entities, political groups, and other organizations to contribute virtually limitless funds, often under a veil of anonymity, to candidates.
“I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.”
And there are so many more of these gems, of which I offer but a sampling:
“The Court’s argument also overlooks the rudimentary principle that a specific provision governs a general one. Even if it were true that the term ‘such Exchange’ … implies that federal and state Exchanges are the same in general, the term ‘established by the State’ … makes plain that they differ when it comes to tax credits in particular,” he said. “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”–dissenting opinion on thwarted challenge to the “Obamacare” legislation.
“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of theCourt to do so.”
And this one, oozing with rightful condescension, regarding a case about permitting a handicapped (no pun intended) golfer to use a cart in a PGA tournament.
“If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental”
“The judge who always likes the results he reaches is a bad judge.”
“A man who has made no enemies is probably not a very good man.”
“Never compromise your principles, unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”
“In a big family the first child is kind of like the first pancake. If it’s not perfect, that’s OK. There are a lot more coming along.”
“Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?” he asked. “…It would be absurd to say you couldn’t do that. And once you acknowledge that, we’re into a different game.”
“I even accept for the sake of argument that sexual orgies eliminate social tensions and ought to be encouraged.”
“Indeed, follow your star if you want to head north and it’s the North Star. But if you want to head north and it’s Mars, you had better follow somebody else’s star.”
“If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist.”
And just when you’re thinking, “this guy isn’t the villain I thought he was,” you run into something like this:
“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
“This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.'”
“Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people … This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — ‘Justice Scalia, when did you first become an originalist?’ — as though it is some kind of weird affliction that seizes some people — ‘When did you first start eating human flesh?'”
“I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock hard science compared to psychology practiced by amateurs.”
And lastly, you’ve got to love a man who sticks it to his haters–in a letter to the editor of the Boston Herald…ouch.
“It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture — inside Holy Cross Cathedral [Boston], no less. The story is false, and I ask that you publish this letter in full to set the record straight. Your reporter, an up-and-coming ‘gotcha’ star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said ‘That’s Sicilian,’ and explained its meaning– which was that I could not care less… How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the ‘Sopranos,’ your staff seems to have acquired the belief that any Sicilian gesture is obscene– especially when made by an ‘Italian jurist.’ (I am, by the way, an American jurist.) Sincerely, Antonin Scalia.”