Paying Tribute to Justice Scalia
By: Audrey Henderson
President Obama ordered flags be flown at half-mast in honor of Justice Antonin Scalia:
As a mark of respect for Antonin Scalia, Associate Justice of the United States, I hereby order, by the authority vested in me by the Constitution and laws of the United States of America, including section 7 of title 4, United States Code, that the flag of the United States shall be flown at half-staff at the White House and on all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, on the day of interment. I also direct that the flag shall be flown at half-staff for the same period at all United Stages embassies, legations, consular offices. and other facilities abroad, including all military facilities and naval vessels and stations.
On February 13, 2016, Justice Antonin Scalia passed away at age 79. For approximately 30 years, Scalia served as a Supreme Court Justice. He was a conservative icon who had a brilliant mind, energetic style, incisive wit, sharp tongue, and colorful opinions. He was a devout Catholic, “a proud father of nine children, and grandfather to many loving grandchildren.” And while many did not agree with him, Justice Scalia “loved to call it as he saw it.”
Antonin Scalia was born on March 11, 1936 in Trenton, New Jersey, as an only child to Italian immigrants. He attended St. Francis Xavier High School where he graduated as the class valedictorian. He went on to study history at Georgetown University where, once again, he graduated as valedictorian in 1953. His love for education led him to attend Harvard Law School, where he met his wife, and for the third time in his life, he graduated as class valedictorian.
Justice Scalia only practiced law for six years before deciding that he wanted to teach rather than practice. He taught at the University of Virginia for four years before being appointed as general counsel for President Richard Nixon. After the Watergate scandal, however, Scalia went back to teaching at the University of Chicago Law School in 1977. In 1982, President Ronald Reagan nominated him for the United States Court of Appeals for the District of Columbia Circuit. Four years later, Chief Justice Warren Burger retired from the Supreme Court bench and Justice William Rehnquist was named as the new Chief Justice. President Reagan nominated Scalia and the senate unanimously voted in favor of Scalia in a ninety-eight to zero vote.
While serving on the bench, Justice Scalia was never at a loss for words in both oral arguments and his expertly written opinions. “He wrote more concurring opinions than any other justice in Supreme Court history, and is the third for most dissenting opinions.” He stated that “[d]issents are where you can really say what you believe and say it with the force you think it deserves. And if they prove correct years later . . . it makes you feel good.” He consistently made headlines with phrases such as “legalistic argle-bargle,” “pure applesauce,” “jiggery-pokery,” and “SCOTUScare.”
“As a Supreme Court Justice, Scalia was considered to be one of the more prominent legal thinkers of his generation. It was also through his blunt (some would say scathing) dissents that he earned a reputation as combative and insulting.” Many people to this day do not agree with him and they criticized him stating that he allowed his personal views to get in the way of his legal judgment. Scalia continued to support state’s rights, did not believe there was a constitutional right to abortion, believed in the constitutionality of the death penalty, and endorsed an individual’s right to carry firearms.
But what many people do not seem to understand is that Justice Scalia’s views were based on his belief in originalism. He believed that the United States Constitution should be interpreted based on what the words and phrases meant to the ordinary member of the public in 1789. This is known as the public meaning thesis where “[c]onstitutional meaning is fixed by the understandings of words and phrases and the grammar and syntax that characterized the linguistic practices of the public and not by the intention of the framers.” Justice Scalia believed that the Constitution was not a living document and that if people wanted to implement change, they needed to do it through the legislature, not the court systems.
I had the honor of meeting Justice Scalia during the summer of 2015 when I took a class at Georgetown University on Constitutional Interpretation: Originalism in Theory and Practice. My class had the privilege of asking Justice Scalia questions on his theory of originalism. While I have not always agreed with his opinions, I have always been entertained by reading them. However, meeting him in person did not disappoint. As the questions kept coming, I found that he was indeed very forward and blunt, which is something I tend to respect. I learned that he is very passionate about an individual’s right the carry firearms. He even made the comment that he kept weapons on every floor of his residence.
Subjectively, one of the most interesting questions asked was whether there was ever a case where Justice Scalia applied his public meaning theory, but did not like the outcome of the case. Without hesitation he replied, Texas v. Johnson. In Johnson, a Texas law convicted a man for burning the United States flag, but the Supreme Court found the law unconstitutional stating that the defendant’s conduct was expressive conduct as part of a political demonstration. Scalia sided with the majority finding that flag-burning is protected under the First Amendment. He reasoned that historically, looking at the public meaning of free speech, society was allowed to criticize the government, and thus, burning the flag was just another criticism. However, turns out, Justice Scalia hated the result in Johnson.
But besides being known for his conservative views, Justice Scalia was also known for his witty comments and sarcasm. In a recent study conducted by Richard Hasen, a law professor at the University of California at Irvine, Hasen found all examples of sarcastic Supreme Court opinions from 1986 to 2013. Out of the 134 examples of sarcasm, 75 of then came from Justice Scalia.
For Example, in City of Erie v. Pap’s A.M., Scalia stated that “I am highly skeptical, to tell the truth, that the addition of pasties and g-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster a sexually transmitted disease.” In NLRB v. Canning, Scalia stated, “[y]et on the majority’s view, when the first Senate considered taking a 1-month break, a 3-day weekend, or half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint officers in its absence.” Lastly, in Citizens United v. FEC, Scalia noted “[a]ll the provisions of the Bill of Rights set forth the rights of individual men and women — not, for example, of trees or polar bears.”
Justice Scalia was a remarkable justice with a love for his country. Despite his conservative and originalist view of the law, he will always be known as having a tremendous impact on our legal system.
Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate 1 (2011).
Texas v. Johnson, 491 U.S. 397 (1989).
City of Erie v. Pap’s A.M., 529 U.S. 277, 310 (2000).
NLRB v. Canning, 134 S. Ct. 2550, 2598 (2014).
Citizens United v. FEC, 558 U.S. 310 391-92 (2010).