He understood that the Constitution empowered the People, not the Judiciary
The unexpected news that Antonin Scalia died was a punch in the gut.
It reminded me of when I first heard that Andrew Breitbart had died — my wife saw it on Twitter and asked whether it was true. Her comment about Breitbart applies equally to Scalia, A personal note on the death of Andrew Breitbart:
Since my wife called this morning to let me know of Andrew’s death, it has been hard to focus on anything else. In her words, we don’t have that many bright media lights, and to lose him hurts.
Scalia was more than just a Justice. He was the embodiment of resistance to liberal political correctness and social justice war perpetrated through the judiciary rather than the electorate.
I never met Scalia, but I heard him speak once at the Justinian Society in Providence, Rhode Island. He was larger than life, had total command of the room packed with 150 or more lawyers, and was incredibly self-deprecating. And we all laughed so hard at times it’s a miracle no one choked on lunch.
There are other judges who have sound constitutional principles, but none with the humor and wit of Scalia. He was the conservative judicial rock star. Scalia’s use of language in the defense of the Constitution was legendary, and damn funny.
Scalia’s Dissent in the Obamacare II (subsidies) case was a paradigm of Scalia’s wit, humor and constitutional intergrity. Here are the most quotable lines from his dissent (emphasis added):
1. “This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it re-writes the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”
2. “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.”
3. “Pure applesauce. Imagine that a university sends around a bulletin reminding every professor to take the “interests of graduate students” into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has “graduate students,” so that “graduate students” must really mean “graduate or undergraduate students”? Surely not.”
4. “The somersaults of statutory interpretation they have performed … will be cited by litigants endlessly, to the confusion of honest jurisprudence.”
5. “It is bad enough for a court to cross out “by the State” once. But seven times?”
6. “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers” enumerated in the Constitution.”
And from Scalia’s oral dissent from the bench:
7. “The Court solves that problem (believe it or not) by simply saying that federal exchanges count as state exchanges only (and this is a quotation from the opinion) “for purposes of the tax credits.” How wonderfully convenient and how utterly contrary to normal principles of interpretation.”
Miriam Webster felt is necessary to have an explanation of Scalia’s use of “jiggery-pokery”:
Jiggery-pokery (meaning “dishonest or suspicious activity”) is a fine example of what is referred to as rhyming reduplication, and Scalia appears to have more of a fondness for this type of language than do most of his fellow justices (he used the phrase argle-bargle several years ago in another decision).
Prof. Glenn Reynolds has some other choice quotes which demonstrate that Scalia understood that the Constitution empowered the People, not the Judiciary:
“One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”
“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.”
Scalia did anti-political correctness right — with powerful legal reasoning, wit and humor.
To say that Scalia is irreplaceable is not an overstatement.