Saturday, February 13, 2016

Appealing to a Higher Court

"Wait a minute. I just had some work done to my fence and I had to have a permit. Why wouldn't you need a permit to open an adult book store?" Associate Justice Antonin Scalia, during oral arguments, March 2004.

Noting the passing of Associate Justice of the Supreme Court of the United States Antonin Scalia.

My daughter, an attorney admitted to practice in Maryland, sent me a text - "Holy crap- Scalia died." With those words, she noted a sea change in American constitutional jurisprudence.

Antonin Gregory Scalia served on the Court for 29 years. He was nominated by President Ronald Reagan, and confirmed unanimously by the Senate on September 17th, 1986. He is often called a "conservative" justice. NBC, announcing his death at age 79 tonight, described him as "anti-affirmative action and anti-abortion rights." Similar words will be uttered by legions of the clueless as the week unfolds, and members of the legally-challenged press struggle with his legacy.

Justice Scalia has amassed a considerable body of work. In addition to his opinions for The Court (his many dissents, some featured in the book Scalia Dissents, are among the tastiest legal writing extant), he is the author of a number of books explaining constitutional interpretation. He sought to explain, in language accessible to lawyers and lay people alike, what he thought was the most coherent approach to understanding a 200 year old parchment.  They are thick and, sometimes, ponderous.

In an interview with Peter Robinson on Uncommon Knowledge, Scalia explained that interpretation of the Constitution without some foundational assumptions about its meaning when enacted (and when it's amendments were adopted)  reduced the republican form  created by the Founders to "A show of hands among nine lawyers." The fluidity sometimes engaged in to arrive at a "just" outcome was confusing. "I'm a lawyer," he said. "How do I advise a client under those circumstances?" The People had agreed to a constitution that limited the government's power. Everything else? "Get together and persuade your fellow citizens that you are right." Leave it to the people.

He could be petulant, and rigid. One opinion voided statutory attempts to spare child sex assault victims the anguish of facing their rapist in open court.  Another made searches of motor vehicles that had been permitted for decades by the court unconstitutional. His reasoning? Um...

One of the most interesting facts of the Court was his close friendship with Justice Ginsberg. A more unlikely pair may not exist. But, ideology is not destiny. They were two exceptional lawyers who happened to work for the same part of the government. They had a great deal of affection for each other, a fact that Scalia was not bashful to admit.

In 2004 Pat, Beth and I traveled to DC to watch a friend argue a case before the Supreme Court.  It was the case noted in the above quote about the fence, a zoning matter, really. Scalia sat back and listened, mostly, to the lawyers making their cases. When he sat forward, there was a hush. He uttered the question... Well, that was that. The case was decided 9-0. Everyone needs a permit.

Now he is gone. Daughter Beth said it best "He was a brilliant and entertaining jurist. I will miss reading his opinions, and even more so his dissents."


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