Monday, February 15, 2016

Great Words from a Great Mind

It’s President’s Day, so I thought I’d share a few favorite quotes from the greats: George Washington and Abraham Lincoln. I’ve done that in past years, however [here and here]. And, while they’re worth repeating every Presidents’ Day, with the death of Justice Antonin Scalia this past weekend, I’m changing plans and quoting him instead.
Justice Antonin Scalia
image from here

He was quotable in interviews and speeches, and maybe regular life. But many of his memorable words come from SCOTUS decisions, particular his dissents. Here are a few.

In reference to the bad decision on King v. Burwell, June 2015, which upheld the Obamacare question concerning state exchanges:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so….
This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B….
If the subsidy would be given for any exchange, then it would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.
Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State
is “established by the State.”
There’s more:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

They made Congress, not this Court, responsible for
both making laws and mending them.
And this memorable line:

We should start calling this law SCOTUScare.

And this:

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.
Justice Scalia speaks at Roger Williams University
law school; image from here

I came across this next quote in a PJMedia piece today. It concerns a 1996 free-speech decision, which I believe was to overturn a ban on internet pornography. Scalia wrote in his dissent:

The court must be living in another world. Day by day, case by case,
it is busy designing a Constitution for a country I do not recognize.

Justice Scalia had plenty to say following the Court’s invention of a right for same-sex couples to marry each other, in his Obergefell v. Hodges dissent:

So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

And further in:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.

Followed by:

Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

And to put a finer point on it:

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Justice Scalia was nominated by President Reagan in 1986. He was completing his 29th session on the Supreme Court this year. I’ve mainly quoted from a couple of recent opinions. There should be books—and probably are or will be—documenting his opinions. And probably more books retelling his wit and wisdom. Those of us who love our country and our Constitution feel a bit bereft right now. We needed him on the Court.

Cartoon by A. F. Branco

As for replacement, the speculation is just beginning. There is plenty of precedent to avoid seating a justice in the last lame-duck year of a presidency. Replacement this far into the term—near the time when opinions are beginning to be written, and most briefs read and considered—is too late for a new justice to come up to speed. Cases resulting in a 4-4 ruling can be reheard in the next term. It is better to have the Court down a number than to have cases badly settled by an unprepared guess.

The next term begins again in the fall, just before the election. There is no hurry from either party to grant the power to name a new justice to an outgoing president, instead of the one to be sworn in in January. A new president can be ready to name a replacement immediately, allowing maximum time for serving in the coming term.

To those of us who valued Scalia’s adherence to the Constitution, it is imperative that we have a justice who reads, understands, and abides by the law, rather than wavering according to the whims of the time.

Postponing the appointment gives us reason to hope. But it depends on the Senate standing firm. Scary thought. But that is what we must pray for. That, and a next president who knows what to look for in a justice.

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