What’s Wrong with the World

Herewith, in tribute, a selection of quotations from Antonin Scalia.

Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character. And if that does not govern and direct your brains and learning, they will do you and the world more harm than good.

From a commencement address at the College of William and Mary, 1996, as quoted in the New York Times.

If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.

Speech to the Knights of Columbus, Baton Rouge, 2005, as quoted in The Advocate.

It is not irrational to accept the testimony of eyewitnesses who had nothing to gain....The wise do not believe in the resurrection of the dead. So everything from Easter morning to the Ascension had to be made up by the groveling enthusiasts as part of their plan to get themselves martyred." Address to a prayer breakfast of a chapter of the Christian Legal Society, Mississippi College School of Law, 1996, as quoted in The Reading Eagle.

As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. ___ (1992), conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so….

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will…. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Concurrence in Chapel v. Center Moriches Union Free School District (1993)

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of unelected, life-tenured judges — leading a Volk who will be 'tested by following' and whose 'very belief in themselves' is mystically bound up in their 'understanding' of a Court that 'speak[s] before all others for their constitutional ideals' — with the somewhat more modest role envisioned for these lawyers by the Founders.

[...]

There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82d year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. He is all in black, sitting in a shadowed red armchair, left hand resting upon a pad of paper in his lap, right hand hanging limply, almost lifelessly, beside the inner arm of the chair. He sits facing the viewer, and staring straight out. There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself “call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

Planned Parenthood v. Casey (1992), concurring in part and dissenting in part.

Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were--as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. 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. Today it enshrines the notion that no substantial educational value is to be served by an all men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.

Dissent in United States v. Virginia, 1996.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Dissent in PGA Tour v. Martin, 2001

There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time....

The worst thing about the Living Constitution is that it will destroy the Constitution.

Remarks at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005.

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Dissenting in United States v. Windsor, 2013.

It was altogether fitting that this great jurist should have lived to write a dissent in Obergefell v. Hodges, handed down in the summer of 2015, the court's most recent power grab. It would be difficult to say that Obergefell is the worst of such breathtaking coups; there have been so many over the decades. But it was certainly one of the most blatant. And it is the one that is fresh in our minds--a recent wound to the body of the Republic. So we will conclude with several quotations from Scalia's dissent in that case, including the justly famous promise to hide his head in a bag if he were ever, in writing an opinion, to descend to the level to which his colleagues' "reasoning" had fallen.

The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners.

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy....Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.

These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. The opinion is couched in a style that is as pretentious as its content is egotistic.

In the death of Antonin Scalia, heaven's gain is our loss. May we have the courage to follow his example, to fight for the right untiringly, with a heart buoyed up by knowledge of the truth, by the strength of God, and by the confidence that the illogic of hell will not have the final word.