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.
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| 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.”
And,
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.
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| 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.
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| 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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