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March 09, 2016

Clyde DeWitt on Justice Scalia's Legacy

This article originally ran in the March 2016 issue of AVN magazine. Click here to see the digital edition. Upon his recent death, Justice Antonin Scalia was the longest-serving justice sitting on the United States Supreme Court. “Nino” Scalia, known as much for his dear friendship with the other justices on the Court as for his spirited sparring during oral arguments and his blistering dissents, from the day he took office in 1986, was idolized by conservatives as supplying intellectual firepower for their cause, central to which was his vehement opposition to Roe v. Wade. Neither his intellect nor his congeniality ever were credibly challenged. A native of suburban New York City, educated at a Manhattan prep school, at Georgetown and at Harvard Law, he went to private practice and then the University of Virginia as a professor; and later the University of Chicago, where he put a charge into the fledgling ultra-conservative Federalist Society. He worked in the Nixon, Ford and Reagan administrations, the latter rewarding him with an appointment to the United States Court of Appeals District of Columbia Circuit. Recall that President Reagan’s first appointment to the Supreme Court was Sandra Day O’Connor, a justice who did not materialize into the conservative mold for which the Republicans were hoping. During his 1994 campaign for his second term, Reagan aggressively courted evangelicals; and, after his landslide reelection to which they so profoundly contributed, he owed them. In 1986, then-Chief Justice Warren Berger announced that he was stepping down. The attorney general by then was Edwin Meese III, remembered most by readers as having set in motion the hearings which culminated in the so-called Meese Commission Report and launching the federal government’s attack on the adult mail-order (Operation PostPorn) and video (Operation Woodworm) industries, vowing to rid the country of explicit pornography. However, another function of the Department of Justice is to advise the president about judicial appointments. Meese orchestrated a double whammy:  First, President Reagan would nominate then-Associate Justice William H. Rehnquist to be the chief justice. Rehnquist, appointed by President Nixon in 1972, he was indisputably the most conservative justice on the Court. Elevating Rehnquist to the chief justice position would leave an opening for a new associate justice. For that opening, the nominee would be Antonin Scalia, then a judge on the Court of Appeals for the District of Columbia Circuit. Scalia was not then widely known, which is the case with most justices on lower federal courts. However, he was the perfect choice for Meese. Although it is obvious that Meese’s Department of Justice had thoroughly vetted Scalia, especially with respect to abortion, that wasn’t widely known. The Republicans were determined to not repeat the mistake that they perceived in Justice O’Connor’s appointment. Additionally, Scalia would be bound to do well in confirmation hearings. He was brilliant, yet affable—an avuncular scholar. Both were confirmed; and on September 26, 1986, Rehnquist was installed as chief justice; and Scalia was installed to replace him as associate justice. That combination left hook and right-hand cross meant that the Republicans had installed the most proven of a conservative Chief Justice imaginable, along with a new associate justice who was almost certain to be at least as far to the right. If the chief justice is in the majority on a case, it is the chief justice who decides which justice will author the majority opinion, including that the chief justice can keep the assignment for himself. As an aside, concurring and dissenting opinions are optional. Any justice who feels the need to chime in may do so. For dissenting opinions, Scalia wrote many against positions that AVN readers likely embrace. As to oral argument, similar latitude is allowed. At one extreme is Justice Thomas, who almost never asks questions. Justice Scalia was the opposite extreme, appearing to view oral argument as a sport. That was especially true in a case where, going in, he had already made up his mind. He would pepper litigants with questions to make light of the argument that he disfavored. From time to time, Justice Scalia did make rather surprising votes that Republicans did not embrace. For example, he voted to require a jury finding of facts that would increase a sentence in a criminal case.All told, Justice Scalia was a Supreme Court powerhouse. The court plainly will be worlds different without him.

 
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