Thank you, Antonin

Earlier this month we reflected on the 3rd death anniversary of the late great Supreme Court Justice Antonin Scalia. Recently, I have had the privilege of reading a biography on his life, “Scalia: A Court of One” that reflects on his youngest years to his days as a legendary Supreme Court justice. He will continue to be remembered for generations to come for his significant contributions to Constitutional law.

Before going into some of my favorite published judicial opinions by Justice Scalia, here are some brief thoughts on why he is such an inspiring figure and one of the greatest jurists in the modern era. The book discusses Justice Scalia’s persistence at such a young age for being the best in what he wanted to accomplish, whether it be a high achieving student in his high school class, college or law school class. Whether it be a top debater or perfecting his judicial opinions, Justice Scalia held himself to a high standard.  He did not accept mediocrity, rather demanded excellence from himself and the others around him. He was one that would not shy away from going against the grain and putting principle over institutionalism if it meant a proper reading of the Constitution. Too often Supreme Court justices have found themselves concerned about societal perception on how the Court is viewed rather than being faithful to the text of Constitution. Justice Scalia was different, he realized it was not his place as a jurist to be on the right side or wrong side of an issue, rather it was clear that his responsibility was solely to the Constitution. It is the responsibility of politicians to consider societal trends when passing legislation, not that of the judiciary.

Justice Scalia was not afraid to communicate this view to fellow jurists. If he believed a fellow jurist was misguided in their interpretation method, he would make his thoughts known and would issue challenges to the respective jurist. Even if this meant that they would not join his opinion or they would be less likely to collaborate on a future matter, the Constitutional principle at hand always took precedence. This is why many of his dissents do not gloss over the majority opinions view, but rather specifically issue challenges to it and the view of the judges who composed the opinion. This is among the most admirable traits Justice Scalia possessed during his Supreme Court tenure. The following are brief highlights of some notable opinions produced by Scalia:

DC v. Heller

This was one of Justice Scalia’s finest opinions on the major issue of Second Amendment rights. He provided a strict originalist and historical approach when interpreting the Second Amendment to strike down a DC law restricting the use of handguns in the home. A major focus was on the operative terms in the Second Amendment of “militia” and “keep and bear arms”.

The Second Amendment’s text provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Scalia cited the following historical premises for the individual to extend ownership over guns even without a military purpose:

“From our review of founding-era sources, we conclude that this natural meaning was also the meaning that ‘bear arms’ had in the 18th century. In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense of himself and the state.’”

He further traced this historical background to England and the time of the Stuarts when the people of that nation were in fear of governmental abuses and also sought self-defense within the confines of their own home.

He stated:

“but the threat that the new Federal Government would destroy the citizens’ militia by      taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”

This understanding carried through to when the colonists settled in American and began developing state governments and eventually the nation itself. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Lawrence v. Texas

 This case concerned an anti-sodomy statute in Texas. The Supreme Court overturned the Bowers v. Hardwick case from 1986 and found that this form of sexual activity was protected under the liberty clause of the Fourteenth Amendment by virtue of substantive due process. Therefore, the criminal sodomy statute was invalidated.

Scalia’s dissent focused on a critique of the Court assuming a legislative role, instead of acting as a neutral observer. Valid public debate can be had regarding the merits of the statute; however, Scalia was most concerned with the Supreme Court being involved in a matter that should have been handled legislatively. If state laws seem antiquated and inapplicable to modern sentiment, it is the duty of the legislature to make reforms. Justice Scalia believed the Court’s involvement continued to set a dangerous precedent with an undue interference into the legislative process of states. Scalia noted in his dissent that the recognition of this as a right under the U.S. Constitution symbolized an impatience in the democratic process.

Morrison v. Olsen

This case focused on the constitutionality of the Independent Counsel in the Ethics in Government Act of 1978. The majority opinion found that the appointment of an Independent Counsel was Constitutional. It held that vesting the power of appointment in the Special Division (court) did not violate the separation of powers of government. The Attorney General had authority to recommend counsel to the Special Division court for appointment. The Special Counsel was to investigate and if necessary, prosecute crimes. The Attorney General also maintained the power to remove the counsel for good cause.

Justice Scalia’s dissent argued that the Act stripped the President of his constitutionally provided executive power for investigative and prosecutorial powers. This disruption of the separation of powers was unconstitutional. He challenged the majority with two significant points: (1) is the conduct of a criminal prosecution, the exercise of purely executive power? (2) does the statute deprive the president of exclusive control over the exercise of that power?

As discussed above, Justice Scalia noted that it was a purely executive function to investigate and prosecute. He cited prior Supreme Court decisions such as Heckler v. Chaney; Buckley v. Valeo and United States v. Nixon to support his view.

He then addressed the second point and states that any limit on the president’s exercise of that power is unconstitutional. This Act took this power away from the executive branch and it was placed in the Special Division. Furthermore, he noted that the removal actions can take place through the Attorney General, not solely with the President thus this is problematic. Those actions are also limited to “good cause” which constitute restriction on the removal parameters and arguably reduce executive authority.

Justice Scalia does acknowledge, however, that the system has imperfections and could thus conceivably abuse its privileges, but then Justice Scalia noted it was up to Congress to pursue impeachment and the voters to hold the politicians accountable through democracy if overreach is found. Overall, this was a strong dissent and one of Justice Scalia’s finest opinions.

Planned Parenthood v. Casey

This case upheld Roe v. Wade and the constitutional right to abortion. It also altered the Roe standard by providing that the state can regulate abortions at any point from fetal viability as long as an undue burden is not imposed on the woman. It also invalidated the spousal notification requirement in the Pennsylvania abortion law.

Justice Scalia argued in his dissent that the Constitution does not mandate the states to allow abortion on demand, thus emphasizing his disapproval of Roe. Similar to his opinion in Lawrence v. Texas, Justice Scalia emphasized the importance of democracy and states to resolve the issue. Abortion is not entitled to protection under the “liberty” interest in the U.S. Constitution, rather the Constitution is silent on the issue. Justice Scalia sharply critiqued the new “undue burden” standard imposed by the Court in regulating abortion. He found that this test is unclear and can serve as a cloak for more opportunities for judicial activism and policy-crafting.

He stated:

Any regulation of abortion that is intended to advance what the joint opinion concedes is  the State’s “substantial” interest in protecting unborn life will be “calculated [to]             hinder” a decision to have an abortion. It thus seems more accurate to say that the joint  opinion would uphold abortion regulations only if they do not unduly hinder the woman’s decision.”

King v. Burwell

 This case was among the major challenges to the Affordable Care Act heard by the Supreme Court. It focused on the language of the Affordable Care Act that extended tax credits for health exchanges under the Act. The issue was whether based on the wording of the statute, “an Exchange established by the State” this would include a federal exchange as well as the state exchanges, thereby extending the tax credits made available. The majority opinion held that the context of the statute as a whole would allow for both exchanges to be covered. The wording should be broadly interpreted. Furthermore, the majority opinion noted the Congressional intent was to cover many individuals and an interpretation that limited the wording to “state” exchanges would allow for the federal exchanges to operate differently and thereby destabilize the market with less tax credits available.

In his dissent, Justice Scalia, explained that throughout the Act there were clear federal and state distinctions.  He believed it was not the duty of the Court to add language to the provision and expand its given sequence in the Act for the tax credits. Justice Scalia focused on the clear meaning of the clause at issue and strongly believed the Court had overstepped its boundaries with its interpretation.


Justice Scalia will be remembered as one of the greatest jurists in the history of the Supreme Court. An acclaimed scholar and legal mind he has left a legacy defined by his attention to textualism and originalism. He was not afraid to issue bold opinions and truly challenge his colleagues on the Court on the finer points of Constitutional Law. He has garnered respect from both sides of the isle for his contributions to Constitutional Law. Thank you, Antonin.