Monday, February 15, 2016

Antonin Scalia was an ORIGINALIST!

Weekly Opinion Editorial
by Steve Fair

     After the death of Antonin Scalia, the senior Justice on the U.S. Supreme Court, on Saturday, politicians from both sides of the aisle immediately begin to stake out their positions on the procedure to replace him and his possible replacement.  Even for politicians their behavior revealed an insensitive streak.  Would it have been too much to ask for a period of mourning out of respect for Scalia?  Couldn’t the politics have waited just a tad before they started talking about replacing him?  Scalia’s death marks only the second time in sixty years a Supreme Court justice has died in office.  He was 79.
     Scalia was a native of New Jersey, and a graduate of Georgetown and Harvard.  He taught law at the Universities of Virginia and Chicago.  He was a federal judge in DC for four years before President Reagan appointed him to the Supreme Court in 1986.   Scalia served thirty years on the highest court of the land.  He described himself as an ‘originalist and textualist,’ which meant he interrupted the Constitution from the position of the original intent of the writers.  Being a constitutional conservative is popular today among many in the Republican Party, but Scalia was that long before it became the rage.  His written opinions were universally viewed as some of the most scholarly in the legal profession’s history.  Scalia often filed separate opinions in many SCOTUS cases and often castigated the Court's majority in his minority opinions, using scathing language.   During oral arguments before the Court, he usually asked more questions and made more comments than any other justice.  The New York Times conducted a study in 2005 that found that Scalia provoked laughter more than any of the other justices- 19 times more than Justice Ginsburg.
     Justice Scalia was a friend to the unborn.  A devout Catholic, he wrote a dissenting opinion in 1992 in Planned Parenthood vs Casey: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.  The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”  Scalia’s death comes when a case challenging Texas’ strict abortion laws comes before the high court.  Expected to be heard in March, Whole Woman’s Health vs Hellerstedt will likely deadlock the court 4-4, which means the lower court’s ruling will prevail.
    Scalia believed the second amendment of the Constitution protected the ‘individual’ right to keep and bear arms and was intimately tied to the natural right of self-defense. He wrote the majority opinion in District of Columbia vs Heller:  “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
      Scalia’s wit was evident in many of his writings.  After the court ruled in favor of the Affordable Care Act, aka ObamaCare, he wrote; “Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.  We should start calling this law SCOTUScare.”  In a 2002 case, Republican Party vs White, Scalia wrote, “Campaign promises are, by long democratic tradition, the least binding form of human commitment.”  At a 2003 speech before the University of Chicago Law School he said, “You could fire a grapefruit out of a cannon over the best law schools in the country — and that includes Chicago — and not hit an originalist.”       
     Scalia wasn’t afraid to poke fun at himself as evidenced by this statement at his 1986 Senate confirmation hearing:  “In law school, I never understood [antitrust law]. I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.”
     In an interview with Fox News Chris Wallace in 2012, Scalia was asked about his possible replacement.  He said, “Well of course. I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25–26 years. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.”  Scalia wasn’t a fool. 
      Antonin Scalia leaves behind his wife of fifty five years, nine children, and thirty six grandchildren.   He will be sorely missed by the nation he loved and served.   We should mourn his passing before we talk about replacing him. 

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