Wednesday, February 17, 2016

Justice Antonin Scalia's Legacy | National Catholic Reporter

The mark in The Sting asks Robert Redford "how does he do it?" "He cheats." __ "I know he cheats..HOW does he do it?" The mystery of Antonin Scalia is similar. How does he do it? How does the law always command his favored result? Michael Sean Winters explains: when the speculations about the "original public meaning" of the constitution works for him he is an originalist. When that doesn't help he denounces "legislative history" and goes to the text the way Warner Wolff went to the videotape...selectively. - gwc

Justice Antonin Scalia's Legacy | National Catholic Reporter

by Michael Sean Winters
Justice Antonin Scalia sat on the U.S. Supreme Court for almost thirty years. By standard measures, he was not the most influential justice: When litigators before the high court prepare their arguments, they usually target Justice Anthony Kennedy, not Scalia, because it is Kennedy who is likely to be the swing vote. But, Scalia became the face of a conservative legal movement that not only confronted dominant liberal legal attitudes and perspectives, but also revolutionized what it meant to be a conservative justice. In so doing, the man who thought the court should play a small role in a democracy helped accelerate the transformation of the court into a political football.

Even those of us who disagreed with Scalia found ourselves chuckling at his acerbic questioning and bon mots in dissent. His friendship with Justice Ruth Bader Ginsburg was a constant testimony to the belief, the humane belief, that there are more important things than politics. Fred Rotondaro, chair of Catholics in Alliance for the Common Good, told me yesterday, "I had the good fortune to know and be a friend of Justice Scalia for some 30 years. We agreed on virtually nothing politically but had fun lunches, almost always over Italian food and wine, talking often about Catholic thinkers like Chesterton. On the occasions we would move into political issues, he would needle me without mercy on my left wing politics." Washington has too few friendships like that anymore.

Nonetheless, there is no escaping a verdict on his influence on American jurisprudence, and that verdict is not affected by the fact that he was a good buddy to prominent liberals. He was an advocate of two judicial ideologies, neither of which is intellectually tenable and which conflict with each other. Originalism was Scalia’s core ideological commitment, the idea that the Constitution should be interpreted as it was understood at the time of its ratification. He employed Originalism to question the idea that the Constitution is a "living document," as liberal jurists held.

To be sure, there was a need for a conservative corrective after the high court starting snooping around the “penumbras” of the Constitution. As Justice Elena Kagan said in mourning Scalia’s death, “His views on interpreting texts have changed the way all of us think and talk about the law.” But, whether the Constitution is alive or not, the people whose government it intends to frame are most certainly alive and their circumstances change. Laws that cannot change with the lived circumstances of a people soon become disconnected from reality, and that disconnect will lead to the law being held in derision or ignored.

Nowhere did we see the limits of Originalism more than in his decision in Heller, which struck down both a D.C. ban on handguns and a requirement for trigger locks on all other guns. The Second Amendment, Scalia argued, gave individuals a near-absolute right to bear arms, although he allowed that felons and the mentally ill could be prevented from exercising this right. When the Second Amendment was drafted, the world was a different place. As the Brookings Institution’s Ben Wittes has written:

There are lots of good reasons why our values today might not coincide with those of the Founders on the question of guns. The weapons available today, for one thing, are a far cry from muskets, which could never have yielded the kind of street violence America sees routinely now. On a more esoteric level, the Second Amendment's protection for militias reflected the importance the Founders attached to an armed citizenry as a protection against tyrannical government. This made sense at the time. The Founders had a lot of experience with oppressive rulers and little idea whether the constitutional order they were setting up would remain free; maybe they would need to overthrow it sometime. After more than two centuries of constitutional government, however, it's safe to assume that neither an armed citizenry nor a well-regulated militia really is "necessary to the security of a free State." The opposite seems closer to the truth; just ask the Bosnians or the Iraqis. And elections, it turns out, do the job pretty well. To put the matter simply, the Founders were wrong about the importance of guns to a free society.
This is what Scalia, and his acolytes, can’t admit: That as a matter of “original” historic facticity, the Founders could only assert a right to bear a musket, not a right to bear an assault rifle, because that was all they knew at the time. Nor do we today fear that a standing army is a threat to the Republic. So, it is hard to see how the original intent of the Founders mandated Scalia’s finding in Heller. And, whither his concern to defer to the political branches?

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