The Essential Scalia: On the Constitution, the Courts, and the Rule of Law
368The Essential Scalia: On the Constitution, the Courts, and the Rule of Law
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Overview
“[Scalia’s writings] are as readable today as they were when they first appeared. . . . Especially illuminating to anyone who wants to unlock the mystery of why Ginsburg admired Scalia—or who wants to get a sense of where the Supreme Court may be headed.”—The Wall Street Journal
A justice on the United States Supreme Court for three decades, Antonin Scalia transformed the way that judges, lawyers, and citizens think about the law. The Essential Scalia presents Justice Scalia on his own terms, allowing readers to understand the reasoning and insights that made him one of the most consequential jurists in American history.
Known for his forceful intellect and remarkable wit, Scalia mastered the art of writing in a way that both educated and entertained. This comprehensive collection draws from the best of Scalia’s opinions, essays, speeches, and testimony to paint a complete and nuanced portrait of his jurisprudence. This compendium addresses the hot-button issues of the times, from abortion and the right to bear arms to marriage, free speech, religious liberty, and so much more. It also presents the justice’s wise insights on perennial debates over the structure of government created by our Constitution and the proper methods for interpreting our laws.
Brilliant and passionately argued, The Essential Scalia is an indispensable resource for anyone who wants to understand our Constitution, the American legal system, and one of our nation’s most influential and highly regarded jurists and thinkers.
Product Details
ISBN-13: | 9781984824103 |
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Publisher: | The Crown Publishing Group |
Publication date: | 09/15/2020 |
Pages: | 368 |
Sales rank: | 257,534 |
Product dimensions: | 5.90(w) x 9.10(h) x 1.30(d) |
About the Author
Jeffrey S. Sutton, a judge on the United States Court of Appeals for the Sixth Circuit, is a former law clerk to Justice Scalia. He is the author of 51 Imperfect Solutions: States and the Making of American Constitutional Law.
Edward Whelan, president of the Ethics and Public Policy Center, is a former law clerk to Justice Scalia. He co-edited two other collections of Justice Scalia’s work, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer.
Read an Excerpt
Introduction
Judge Jeffrey Sutton
Long before I became a federal judge, I had the good fortune of clerking for Justice Scalia. How life-changing—how much fun—to come across someone early in my legal career with such a rigorous intellect, spirit of curiosity, and fearless character. Once you had a drink at that well, there was no turning back. If anyone knew how to inspire a young person to turn law into a calling, it was Justice Scalia.
Most memorable was his passion for every case. During his thirty years on the Supreme Court, Justice Scalia wrote 870 opinions: 281 majority opinions, 315 concurrences, and 274 dissents. He seemed to enjoy every one of them, penning engaging opinions in land- mark and humdrum cases alike. No matter the stakes, he prized coherence—always—and his mind didn’t come to rest until each string of thought had come into tune. He showed that all cases, great and small, deserve the same rigor and care.
All of this seemed to come easily to him because competitions of the mind came naturally to him. If there is one aspect of Justice Scalia seared into my mind, it’s the value he placed on ideas. Few things made him happier than a vigorous debate over the right way to think about a problem. I thought of him as the chess master who comes to the park on a Saturday morning and is disappointed to see just ten other chess players willing to take him on. Even his first book, A Matter of Interpretation, excerpted in several places here, is written, revealingly, in a debate format. He presented a theory of judging, then asked several prominent professors to challenge him, signaling confidence, humility, and transparency all at once.
As much as Justice Scalia relished the give-and-take of debate, he did not let it interfere with relationships. Some of his closest friends on the Court were colleagues with whom he vigorously disagreed at times. It makes me smile to know that many Americans, and nearly all American judges, know that Justice Scalia attended one opera after another with Justice Ginsburg and taught Justice Kagan how to hunt. Who can say what showed more collegiality: enduring thirty-five years of long, difficult-to-follow operas, or teaching a potential adversary how to use a gun?
During one of my last visits with Justice Scalia, I saw striking evidence of the Scalia-Ginsburg relationship. As I got up to leave his chambers, he pointed to two dozen roses on his table and noted that he needed to take them down to “Ruth” for her birthday. “Wow,” I said, “I doubt I have given a total of twenty-four roses to my wife in almost thirty years of marriage.” “You ought to try it sometime,” he retorted. Unwilling to give him the last word, I pushed back: “So what good have all these roses done for you? Name one five-four case of any significance where you got Justice Ginsburg’s vote.” “Some things,” he answered, “are more important than votes.”
I let him have the last word.
A high point of my clerkship year was listening to him give a dramatic reading of one of his dissents to the “clerkerati,” as he affectionately called us. You might have thought he was delivering a soliloquy from Macbeth. A suffering acknowledgment here, a dramatic waving of the hand there, and a twinkle in his eye throughout left one wondering whether this writing concerned a legal dispute after all. Justice Scalia took joy in writing well.
The clerkship also came with humbling moments, some self-inflicted. I wrote a draft dissent for the justice that at one point drew a comparison with the Know-Nothing Party of the nineteenth century. Crestfallen when the justice removed the line from the draft opinion, I had the audacity to ask him why he had taken it out. “Well, Jeff,” he explained, “the first reason is that you spelled it ‘No-nothingism.’” I couldn’t bring myself to ask him for the second reason. Know nothing indeed.
For those who never had a chance to work with Justice Scalia, there’s another way to know him: read his opinions and articles and speeches. Each time he wrote, his audience was anyone with an interest in the American legal system, whether a first-year law student or an engaged citizen. As a former law professor, he knew how to weave a narrative with amusing asides and clever analogies to present his arguments in the most accessible terms. Once on the Court, he never stopped teaching; his classroom just got bigger.
What you read is what you get with Justice Scalia. He took great care with the written word and meant every word he wrote. All of his colors come through in his writings, as he was not the kind of judge to mask his true views about the right answer to a legal problem. That’s especially so with his dissents and concurrences, when he did not have to write for the Court or account for a colleague’s take on the case.
Witness this excerpt from one of his dissents, which arose in a criminal case and concerned a question that judges see all the time—whether eyewitnesses to a crime had accurately identified the defendant as the culprit. Justice Scalia objected to the majority’s position that new evidence could have changed the verdict, making the point in a memorable and convincing manner. The Court’s objection, he pointed out, was that the four eyewitnesses could identify the defendant as the assailant “not by his height and build, but only by his face.” But that ought to be enough, he insisted:
Facial features are the primary means by which human beings recognize one another. That is why police departments distribute “mug” shots of wanted felons, rather than Ivy-League-type posture pictures; it is why bank robbers wear stockings over their faces instead of floor-length capes over their shoulders; it is why the Lone Ranger wears a mask instead of a poncho; and it is why a criminal defense lawyer who seeks to destroy an identifying witness by asking “You admit that you saw only the killer’s face?” will be laughed out of the courtroom.1
Or take this opening from a technical case about administrative law from his early years as a judge: “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.’”2
Justice Scalia’s opinions stand out for their lucidity and rigorous analysis—and off-the-beaten-path imagery that captured the problem at hand. Surely there was a separation-of-powers problem with the creation of “a sort of junior-varsity Congress,”3 or a flaw in a dormant Commerce Clause test that asked judges to divine “whether a particular line is longer than a particular rock is heavy.”4 By the same token, who could argue with his observation that Congress “does not . . . hide elephants in mouseholes”? 5 The justice could cut to the heart of a matter and signal that a colorful opinion was coming just by re-framing the question presented: “It ha[s] been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf.”6 Say what you will about Justice Scalia, his opinions never put anyone to sleep.
If Justice Scalia inspired his clerks and law students with writing that leaped off the page, he inspired advocates in other ways. Long before he unsheathed his pen, advocates confronted his tenacity in the courtroom, something I experienced firsthand during my dozen oral arguments at the Court. His deep convictions about the proper role of the federal courts, his capacity to identify the soft tissue in any argument, and his flinty-minded, sometimes sidesplitting wit commanded every lawyer’s attention. One wonders if any justice before or since has caused advocates to lose more sleep in the days and weeks before an oral argument as they tried to anticipate what he might ask and how they might answer it.
Every advocate had to come to grips with Justice Scalia’s track record on the issue at stake and his clear-eyed philosophy about the proper way to interpret laws. He tested every advocate with signature questions that went to the core of the case. If you were looking for a tepid or coy justice, he was not your man. The other side of it was that he let you know during the argument just where you stood while there was still time to do something about it, whether by correcting a mis-impression or tacking to a different point. Advocates came to appreciate his candor (most of the time). The North Star to Justice Scalia was getting the reasoning right—an admonition he never ceased to urge on others and never desisted to accept for himself.
You cannot be a lawyer today, a good lawyer anyway, without understanding Justice Scalia’s methods of interpretation. Originalism, his way of interpreting the Constitution, and textualism, his way of interpreting statutes, are now forever linked to him. Both methods turn on the same essential insights: language has meaning (that’s why we use words rather than musical notes or colors to make a law), and that meaning is fixed and does not evolve (that’s why we write the words down in the first place).
Table of Contents
Foreword Justice Elena Kagan xv
Introduction Judge Jeffrey Sutton xix
Editors' Note xxix
1 General Principles of Interpretation 1
The Rule of Law 3
Originalism 12
Textualism 25
2 Constitutional Interpretation 31
Constitutional Structure 33
The Importance of Structure 35
In Praise of the Humdrum 35
Structure Is Everything 36
Separation of Powers 40
Learn to Love Gridlock 40
Legislative Power 43
No Junior-Varsity Congresses-Mistretta v. United States (1989) 43
The Commerce Clause Is Not Carte Blanche 49
NPIB v. Sebelius (2012) Executive Power 53
This Wolf Comes as a Wolf-Mormon v. Olson (1988) 53
Judicial Power 62
Against Novel Theories of Standing-Lujan v. Defenders of Wildlife (1992) 62
Final Judgments Are Really Final-Plaut v. Spendthrift Farm (1995) 66
Political Gerrymandering- Vieth v. Jubelirer (2004) Federalism 71
The Two Faces of Federalism 76
Our System of Dual Sovereignty-Printz v. United States (1997) 81
There Is No Dormant Commerce Clause-Comptroller of Treasury of Maryland v. Wynne (2015) 85
Civil Liberties 88
Free Speech 90
The Freedom of Speech 90
Peaceful Speech Outside Abortion Clinics Hill v. Colorado (2000) 94
Political Speech of Corporations Austin v. Michigan Chamber of Commerce (1990) 99
The Right to Criticize the Government McConnell v. Federal Election Commission (2003) 102
Political Patronage-Rutan v. Republican Party of Illinois (1990) 110
Violent Video Games- Brown v. Entertainment Merchants Association (2011 113)
Hate Speech-R.A.V. v. City of St, Paul (1992) Religious Liberty 117
Prayer at Public Ceremonies-Lee v. Weisman (1992) 121
The Establishment Clause Ghoul-Lamb's Chapel v. Center Moriches Union Free School District (1993) 129
Ten Commandments Displays-McCreary County v. ACLU (2005) 131
Neutral and General Laws-Employment Division v. Smith (1990) 137
Equal Treatment of Religious Believers-Locke v. Davey (2004) 143
Right to Bear Arms 147
Individual Right to Possess a Handgun-District of Columbia v. Heller (2008) 147
Substantive Due Process 154
Abortion-Planned Parenthood v. Casey (1992) 154
Marriage- Obergefell v. Hodges (2015) 159
Punitive Damages-BMW of North America v. Gore (1996) 164
Equal Protection 166
The Disease as Cure 166
Racial Preferences in Government Contracting City of Richmond v.J. A. Croson Co. (1989) 170
Racial Preferences in Higher-Education Admissions Grutter v. Bollinger (2003) 174
All-Male Military Institutions-United States v. Virginia (1996) 176
Economic Liberties 179
Economic Affairs as Human Affairs 179
Regulatory Takings-Lucas v. South Carolina Coastal Council (1992) 187
Criminal Protections 192
Unreasonable Searches and Seizures 194
Thermal Imaging-Kyllo v. United States (2001) 194
DNA, Swabs-Maryland v. King (2013) 196
Anonymous Tips-Navarette v. California (2014) 199
Limiting the Exclusionary Rule-Hudson v. Michigan (2006) 203
Compelled Testimony 206
Rejecting Miranda-Dickerson v. United States (2000) 206
Confronting Witnesses 212
Testimony by Video-Maryland v. Craig (1990) 212
Out-of-Court Statements-Crawford v. Washington (2004) 215
Jury Trial 220
Facts at Sentencing-Blakely v. Washington (2004) 220
Death Penalty 223
Adolescent Murderers-Roper v. Simmons (2005) 223
Welcome to Groundhog Day-Glossip v. Gross (2015) 229
Due Process 233
Vague Criminal Laws-Johnson v. United States (2015) 233
Enemy Combatants 236
A Game of Bait and Switch-Boumediene v. Bush (2008) 236
American Citizens-Hamdi v, Rumsfeld (2004) 240
3 Statutory Interpretation 247
Text and Context-King v. Bur well (2015) 249
What Is Golf PGA Tour v. Martin (2001) 253
Text Versus Concerns of Legislators- Oncale v. Sundowner Offshore Services (1998) 260
Implied Rights of Action-Alexander v. Sandoval (2001) 263
Dictionary Definitions-MCI v. AT&T (1994) 265
Legislative History 268
A Failed Experiment 268
Conroy v. Aniskoff (1993) 274
United States v. R.L. C. (1992) 277
Koons Buick Pontine GMC v. Nigh (2004) 279
4 Review of Agency Action 281
On Chevron Deference in 1989 283
On Chevron Deference Twenty Years Later 293
Agency Interpretation of Agency Rules-Decker v. Northwest Environmental Defense Center (2013) 299
Agency Interpretation of Criminal Laws-Whitman v.United States (2014) 302
Acknowledgments 305
Notes 307
Index 315