Antonin Scalia

How Antonin Scalia Shaped—and Misshaped—American Law

The late Supreme Court justice's mixed legacy on liberty and the Constitution


Antonin Scalia, who died on Saturday at the age of 79, will be remembered as a giant of American law. Appointed to the U.S. Supreme Court in 1986 by President Ronald Reagan, Scalia left a lasting mark on some of the biggest and most significant issues facing the judiciary, from the debate over competing methods of constitutional interpretation to the clash over the proper role of the courts. Law students, lawyers, and judges will be grappling with Scalia's legal handiwork for decades (or more) to come.

For many Americans, Scalia will be perhaps best remembered for his caustic dissents in cases dealing with issues such as abortion rights, gay rights, and gay marriage. When the Supreme Court struck down Texas' controversial ban on "homosexual conduct" in 2003, for instance, Scalia made headlines with his statement that the Court's decision in Lawrence v. Texas was "the product of a Court that has largely signed on to the so-called homosexual agenda." Scalia did not mean that as a compliment.

Yet despite his reputation as a right-wing culture warrior, Scalia was equally outspoken in other areas of the law that are commonly (if erroneously) associated with the legal left. When it came to the Fourth Amendment and its protections against unreasonable searches and seizures, for instance, Scalia frequently led the way in rejecting the pro-government interpretations favored by state and federal law enforcement. For example, in 2014 the Supreme Court ruled that a traffic stop and resulting drug bust that occurred thanks to an anonymous telephone tip "complied with the Fourth Amendment." Scalia thought otherwise. In his dissenting opinion in that case, Scalia attacked the majority for producing an opinion that "serves up a freedom-destroying cocktail" which privileged an anonymous and uncorroborated tipster over a core constitutional right. "All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police." That ugly scenario, Scalia declared, "is not my concept, and I am sure it would not be the Framers', of a people secure from unreasonable searches and seizures."

Likewise, in his 2001 majority opinion in Kyllo v. United States, Scalia came out swinging against the federal government's use of warrantless thermal imaging to detect signs of marijuana cultivation inside of a suspect's house. "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion," Scalia wrote, "the surveillance is a 'search' and is presumptively unreasonable without a warrant."

Justice Scalia wrote a great many influential opinions during his three decades on the Court, but the one he often said he was most proud of was his 2008 majority opinion in District of Columbia v. Heller, the landmark case in which the Supreme Court struck down Washington's handgun ban and ruled that the Second Amendment protects an individual right, not a collective one, to keep and bear arms.

Scalia was proud of Heller not only because it vindicated the Second Amendment, which until then had been in a sort of legal limbo at SCOTUS; he was also proud, as he explained to the journalist Marcia Coyle, because he saw Heller as a "vindication of originalism," the theory of legal interpretation that Scalia did so much to help popularize and establish in American law. Under originalism, the Constitution is supposed to be interpreted according to its original meaning at the time of ratification. As Scalia argued in his 1997 book, A Matter of Interpretation, "if the people come to believe that the Constitution is not a text like other texts; that it means, not what it says or what it was understood to mean, but what it should mean,… well, then, they will look for qualifications other than impartiality, judgment, and lawyerly acumen in those whom they select to interpret it. More specifically," Scalia wrote, "they will look for judges who agree with them as to what evolving standards have evolved to; who agree with them as to what the Constitution ought to be."

Unfortunately, however, it must also be said that Justice Scalia did not always practice the originalist philosophy he liked to preach. Most notably, when the Supreme Court was asked in 2010 to examine the original meaning of the 14th Amendment in the gun rights case McDonald v. Chicago, Scalia not only backtracked on originalism; he actually mocked the libertarian lawyer Alan Gura for daring to ask the Supreme Court to seriously address the original meaning of the 14th Amendment in the first place.

"What you argue," Scalia scoffed at Gura during oral argument, is "contrary to 140 years of our jurisprudence." (I interject myself here to point out that fidelity to 140 years of Supreme Court jurisprudence is not exactly the same thing as fidelity to the text of the Constitution.) "Why do you undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have—even I have acquiesced in it."

It was an unfortunate episode, as even Scalia's biggest fans will reluctantly concede. After all, there was Scalia, the Court's foremost advocate of originalism, falling back on questionable precedents while refusing to consider the originalist arguments that were properly presented before him in a major constitutional case. To make matters worse, Scalia announced his intentions to acquiesce in a legal approach he himself considered to be un-originalist and "wrong."

As a journalist and historian who writes frequently about the Supreme Court, I've leveled my fair share of criticisms at Justice Scalia over the years. But at the same time, I've always had great respect for his keen legal mind and pugnacious rhetorical style. For better and for worse, Antonin Scalia helped shape the course of modern American law. Even among his critics, he is sure to be missed.

NEXT: GOP Presidential Candidates Agree: Obama Shouldn't Nominate Scalia's Replacement

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  1. “Antonin Scalia helped shape the course of modern American law. Even among his critics, he is sure to be missed.”

    I’m really gonna miss him if he’s replaced with someone worse.

    I can’t imagine him being replaced by someone better in the current climate.

    Not by Obama. Not by Bernie. Not by Hillary.

    Maybe by Trump.

    1. Obama is already screeching and whining about obstructionism. Obama will replace Scalia, the GOP will let him do so, and one thing I can guarantee you about that replacement is that it will be someone who hates the 2nd amendment and loves big green bureaucracy.

    2. Trump will appoint a very pro business judge to the court. Hillary will a pro Federal government and Bernie will appoint a Marxist.

      1. Hillary will appoint the person who is most favorable to cronyism.

        1. The sad thing is that whoever is nominated, we all seem to agree that they will be an absolute tool. The chance of a fiercely independent thinker like Scalia being nominated to replace him seems virtually nil.

          1. We need Alex Kozinski.

        2. Her Majesty will appoint the person who pays the most for it.

          I wonder what the going price for a SCJ is now-a-days?

    3. Obama will replace him. We know that whoever replaces him will not be qualified, will be a leftest ideolog, and will not be a white hetro male. They’ll probably bring their “wisdom” of experience as a member of a non-white patriarchy and therefore oppressed victim group.

    4. Trump is likely to appoint someone who is anti-consumer and anti-freedom, as evidenced by his positions on trade and eminent domain.

  2. No mention of Raich? Another terrible decision.

    1. A great example. It’s news to me that an origninalist interpretation of the commerce clause means the government can regulate intrastate non-commercial activity.

    2. that’s probably his worst opinion.

    3. Yeah, any story of his legacy should mention that disgrace

  3. OTS: Get your shocked face prepared: Researchers in, of all the possible places, North Carolina found that vaping weakens one’s immune system, helping them get sick easier than regular cigarettes. I’m sure there wasn’t any large corporations pushing this conclusion for the hope of future (or even immediate) regulatory capture. That would never happen.

    1. Oh yeah, the link.…..cigs-dont/

      1. All you really need to see in that article is this line at the end of the fourth paragraph:

        “Whether the imbalance caused by e-cigs leads to boosted infection risks or other immune diseases, “we don’t know,” Jaspers added.”

        So in other words, the “study” makes no progress towards proving anything one way or another. But that doesn’t stop Arse Technocrat from coming up with this super scary headline strongly suggesting that science has proven beyond a doubt that e-cig users have crippled immune systems.

        1. It’s one study, anyway. Who cares?

        2. Ars Technica has been taken over by leftists and runs hardline leftist political headlines whenever they think they can get away with it. The political angle is now a constant at ars. I liked it much better when they were an independent blog that just cared about tech.

    2. The UNC writer has published a similar article in 2014 on the deleterious effects of tobacco smoke, so she doesn’t seem to be an industry shill. She is getting funded by NIH though, and they have an anti-e-cig agenda of their own.

      None of the three anti-e-cig presentations in that session (including one from NYU and one from Louisville) appear to be based on papers published in peer-reviewed journals, and of course AAAS is an ideologically-driven organization.

      The authors have done significant peer-reviewed work in the past investigating the effects of tobacco smoke and chewing tobacco, but nothing on e-cigs.

      1. I’d like to know more about the ideologic drive of AAAS, because I hadn’t noticed one. I may have seen editorials in Science that were opinionated, but they never seemed to add up to an ideologic drive.

        It’s not unusual to have reports on present’s that aren’t peer reviewed. Typically you get a lot of those mixed in at conferences. Some wind up being submitted, others don’t. Things even change between when the conference book comes out & the cf. itself; that happened in my case, where I was my boss (w/o warning me in advance) put in my incomplete findings to meet the deadline for a conference, but by the time I presented, I’d done another control experiment that vitiated the finding, although it may still have been of use to people who were using the new assay we were using.

        1. I dropped my sub to Science after one too many editorials in favor of government intrusion into state and local fields. They never saw a federal program they didn’t like, especially when it concerned guns, alcohol, tobacco, or any other victimless field.

      2. You know who else was an anti-smoker.

    3. One thing I can assure you of, being someone who has been around research environments for the last decade, is that there will be a study that completely contradicts this. So lawmakers and political pundits will always have their choice of which study they want to pay attention to. I mean, come on, there is a different study every year that says coffee, wine, chocolate, etc, etc are good bad for you. Once you’ve seen the funding source, you can predict the outcome of the study with 99.9% certainty.

      I can find that water is cold for you, or warm, depending on how big your grant is, just by inputting the correct variables.

      1. Butter, margarine, butter, margarine, butter, etc…

  4. Where is his grave going to be so I can piss on it?

    1. When you do piss on the little Koch Owned POS, add a little for the rest of humanity.

    2. Have fun living with the legal regime his successor imposes.

      1. We already live in a fucking police state. The Republic is dead. The federal government is longer legitimate. It is an unaccountable beast that will kill anyone that dares threaten it or expose its malfeasance. i.e. Snowden.

        1. Yeah, because Snowden is so dead. Oh wait.

          I’m not completely disagreeing with your premise. However if your premis is that people end up dead your cited example should include, you know, an actual dead person.

              1. Jim Morrison, Jimi Hendrix, Janis Joplin, it’s a conspiracy.

    3. Why don’t you two piss in each others mouths and go comment on HufPo

    4. I’m sure the line is long, so be prepared to wait.

  5. It’s good* to know that Reason writes their obituary pieces for some public figures years ahead of time and keeps them in the can, to be opened upon death, just like the so-called “mainstream” media does. Until now, I had no idea that was practice here.

    *(By “good”, I mean lame, and more than a little creepy and disconcerting.)

    1. Gerald Ford dead today, from an overdoes of crack cocaine.

    2. As old as the Nazgul are, it seems to be a good idea.

    3. The fuck? You’re getting your panties in a twist because the news isn’t “organic” enough for you? Did you know Reason’s news isn’t “fair trade” either?

      1. You’re telling me H&R *isn’t* written by Chilean farmers on the slopes of the Andes? How else do you explain all the typos?

  6. Everyone better hope that the republicans can hold off Obama’s appointment under all the relentless media pressure, and then double hope that Hillary/Bernie don’t end up in the White House, because Scalia was the only thing keeping the first and second amendments alive.

    If he’s replaced by a progressive, it’s over Johnny.

    1. They won’t even try. They’ll pretend to for a month or two and then Obama will get his way. Where have you been the last 8 years?

    2. Yep. Yesterday was the day the constitution died. The fourth amendment will be finished off for good and the the second and first will be queued up for destruction next.

      Kinda disheartening knowing that I and likely most other Reason posters will eventually be arrested in the future for speech crimes.

    3. The balance has already changed. Ties go to the lower court. If you live in a progressive lower court- they are the new de-facto supreme court on controversial topics.

      What makes you think he will ever be replaced.

      Let me paint the scenario.
      (1) Rs know that it is game over for the supreme court if they replace with a lib… so they block appointment till the next president- this part is already happening according to announcements.
      (2) This means ties go to the lower courts- which currently favor libs since Harry Reid used the so called nuclear option to remove filibuster for non-supreme nominees.
      (3) After the election, If a D wins the Rs keep blocking the nominees bc they know the consequences. Or an R wins Ds block all nominees citing R’s blocking Obama’s nominee. Either way 8 is now the new constant on the supreme court.

  7. Chippy, Chippy, Chippy — just because you’re a self-satisfied child, you don’t have to hate the Black man in the WH so much. It’s bad for your health little fella.

    1. Chip said nothing about race you ass. I’m sure your one of the Thomas haters too because’he’s not really black’.

      1. I wouldn’t pay too much attention to an admitted cuk.

  8. There’s always the chance a lefty will croak soon and make it seven for a while,Ginsburg’s what,100? Her prom theme was the age of bronze.

    1. And she will be replaced by Obama with someone who makes her look like a libertarian.

    1. If only America would follow its lead.

    2. When they still live in the 14th century what do you expect.

    3. I spent a Valentine’s day in Lahore once.

    4. “A festival of obscenity”

      Maybe choose an insult that doesn’t inadvertently make it sound cool

      1. I know right? All I remember from Valentine’s Days of my youth were being forced to write valentines to ugly, fat, smelly girls in my class. These people are complaining that it corrupts the youth by introducing them to indecency. What in Allah’s name are they doing on Valentine’s Day in Pakistan, and can I join them?

    5. “A lot of people in my parents generation think that it makes love commercial and it puts a lot of pressure on people to waste money, which isn’t the essence of love,” she said.”

      Jesus Murphy, it’s ONE LOUSY DAY OUT OF THE YEAR.

      Just roll with it.

      Right, you can’t these days.

    6. That year, Pakistani rights activist Sabeen Mahmud staged a protest in the port city of Karachi in response to a religious conservative-led campaign against Valentine’s Day. Mahmud held up signs saying, “Karachi says Yes to Love”, while billboards around the city told citizens, “Say No to Valentine’s Day.”

      Mahmud reported receiving regular death threats after her protest and was assassinated last April after giving a seminar at a popular Karachi cafe.

      1. Yeah, Pakistan seems like a place where one should take death threats seriously.

    7. Are they massacring it?

  9. Scalia mostly sucked but then again don’t they all? The horrifying thing about the Supreme Court is that 4 judges voted against Heller and Citizens United. Scalia was at least right on that and those two cases speak to the fundamental rights we enjoy to freedom of speech and the right to bear arms.

    1. And we know Hillary is licking fangs to gut both.

    2. Yep. Our most basic rights are hanging by the thinnest of fraying threads.

    1. That Brennan even had an AOL account is a damming indictment of his common sense.

      The are plenty of more secure options out there.

      And I thought the Trump Stamp was a facsimile of his mouth, in which case I already have one just below my lower back.

      1. That and he’s a lying POS.

    2. I could have peacefully lived out the rest of my life without seeing that Trump stamp, nor the hideously shaped back on which it is forever etched. I owe you one, Crusty. I owe you one. Pray that you never see it coming.

      1. Why would you click on that? Blame yourself; you have issues.

        I owe you one, Crusty.

        I hope this “one” you speak of is a bottle of Four Roses Small Batch. That is some delicious stuff.

        1. Four Roses….ick.

          You need to expand your palette. Try some WhistlePig or 1792 or Breckenridge. Four Roses might have some battery acid in it.

          1. I love Breckenridge. The distillery makes some great stuff too.

  10. They forgot to mention that he dissented during the Kelo case.

  11. That’s a nice economy your state has going there. It sure would be a pity if anything were to happen to it.

    “CHARLESTON – The West Virginia House of Delegates approved a bill Thursday touted as protecting religious freedoms but viewed by critics as a possible window for legal discrimination.

    “The legislation, titled the West Virginia Religious Freedom Restoration Act, would add language to state code allowing people to cite religious-based objections to state actions in certain court proceedings. It passed by a 72-26 margin.

    “The bill will advance to the Senate for consideration, but Gov. Earl Ray Tomblin has indicated he will veto the bill if it makes it to his desk.

    “In statements regarding the bill, Tomblin has referred to the effect a similar bill has had on the state of Indiana, which may have lost $60 million in revenue from groups that opted against hosting events in Indianapolis because of a similar law passed in that state, according to reports from The Associated Press….

    “Andrew Schneider, executive director of Fairness West Virginia, the state’s lesbian, gay, bisexual and transgender, or LGBT, civil rights advocacy organization, said the bill seeks to legalize discrimination under the guise of religious freedom, saying it may have a devastating effect on the Mountain State’s economy.”

    1. They can’t protect the rights of Christians because then LGBT activists might pressure the public employee unions to boycott the state?

      They shouldn’t have to pass laws to protect the First Amendment.

      What we need is for someone to invent a warp drive.

      1. Can we change it back to GLBT so I can pronounce it as an acronym, instead of an initialism?

        1. Huh. I was surprised “GLBT” never led. But at least the ratio was lower:

  12. Even some of Scalia’s harshest critics are originalists some of the time – they’re the ones arguing the Second gives you the right to keep and bear muskets.

    1. That’s not an originalist position. Rifles, pistols, and blunderbusses (ancestors of the shotgun) were already widespread in 1789.

      1. Rifles, as in long guns with rifled barrels that shoot minie balls, didn’t come onto the scene until the mid 1800s.

        All guns in 1789 were smooth bore.

        1. No. There were already riflemen in the French and Indian/Seven Years War and in the American Revolution. The musket remained the primary weapon for infantry due to the expense and difficult maintenance of early rifles, but rifles did exist for sharpshooting purposes.

        2. All guns in 1789 were smooth bore.


      2. you are forgetting cannons. They were perfectly legal to own and many many ships of the day were outfitted with private cannons for protection against pirates. If we had the same attitude today there really wouldn’t be a Somali pirate issue for US ships.

    2. What I love about the “2A protects muskets” argument is that the colonists frequently owned the exact same rifles that were being carried by most military personnel at the time along with heavy artillery like cannons. So, the 2A actually does protect our right to own M-16s, M249s, tanks, grenades, and a whole lot of other cool stuff that we can’t have.

  13. The man was 79 and everybody is treating this as a huge surprise. It’s not like he died at 50.

    Kennedy is 79, too. The chances of Obama getting to replace one of the conservative justices in his second term were pretty high. You should have known this back in 2012 and acted then.

    1. Then, I should think, Hillary and Bernie shouldn’t run, correct?

      1. No, but Hillary’s VP choice is going to be important for that reason.

        1. She needs a Democrat with credibility in the South?

          Let’s see. There’s . . . um . . .

          She might as well pick Bernie Sanders.

          1. It’s going to be a black guy. Devil Patrick or, if we’re lucky, Cory Booker.

      2. You are right about Hillary. She shouldn’t run. She should be in prison.

    2. The question is how come it’s the evil Marxist scumbags who always seem to live halfway to forever? It’s as if hatred and malevolence are the essence of the life force or something.

      1. That’s just Ginsburg. The other three are still relatively young.

      2. It’s a cognitive bias thing. We remember the things with more intensity as if they happen more often, and watching our rights and liberties getting bent over and raped by idiot progressives is really intense.

        1. Although retired, Stevens is still alive at the age of 95, and Breyer is 77.

  14. The proggie trolls are out in force

    1. Yeh, I’m not noticing that.

    2. They thrive on hate and death.

      That’s another reason why progressives are America’s most horrible people.

      1. Plus, they pick your pockets & steal your stuff.

        Hateful people who take your stuff.

  15. The wise Latina is sometimes right when the others are wrong. Maybe the stopped clock will appoint a decent judge on accident.

    1. It’ll have to be a big accident.

      Like was trying real hard to pick the worst possible but turned out good.

      It can happen though.

      Once in high school. I saw a girl on the basketball team score a basket for the other team. It was nothing but net. She wasn’t a progressive though. She was white and evangelical. Her name was Cheryl.

      What we really need is for someone to invent a warp drive. Then we could go somewhere where the progressives’ hate can’t hurt us anymore. Where they can’t parasite off us anymore and steal from us because we work hard.

      Let my people go.

      1. Have you ever read Cities in Flight? That’s how that book starts, more or less.

        1. No, I’ll check it out.

    2. Sri Srivansan just sailed through the Senate on a 97-0 vote last week for a seat on the DC Circuit. You’re looking at your next Supreme Court Justice. There’s no way Hatch or McConnell can justify holding up a nomination that was just approves. On top of that, the man has impeccable qualifiations and will be the first Asian American on the Court.

      1. Oh, he’s Asian?

        Wow, let’s order some sweet and sour pork to celebrate!

        1. Wrong kind of Asian. It’s a big fucking continent, bub.

          1. But he’s ASIAN!

            The FIRST ASIAN!

            I’m sure all of Asia will want to celebrate–because he’s soooooooooooo ASIAN.

            I bet you didn’t think an Asian could get to the Supreme Court, did you? Well they can! They may be Asian, but they can get to the Supreme Court anyway!

            Now let’s go celebrate with some green tea ice cream.

            1. It’s people like you who cast a Korean to play Sulu.

              1. You’re the one that said it was important that the next Supreme Court justice be Asian.

                1. No, I didn’t. We already have three justices with Asian ancestry: Ginsburg, Breyer, and Kagan.

                  1. “On top of that, the man has impeccable qualifiations and will be the first Asian American on the Court.”

                    Sorry, that was someone else.

                    But both your names start with the letter “B”!

              2. It’s people like me who thought for a year or more that the name was Zulu.

            2. At his swearing-in ceremony, he took the oath on the Hindu holy bookBhagavad Gita.

              He could have sworn upon the deep spiritual truths within the Brahma Sutras, but no, he had to choose the poem which asserts that Arjuna was obligated to ride into battle to slaughter his family and friends because of the caste he was born into.

              I look forward to Srivansan’s opinions concerning the tension between individual liberty and one’s “obligations” to society.

              1. If he had been sworn in on the Kama Sutra that would have been awesome.

              2. Someday, someone will be sworn in on a copy of the Poetic Edda.
                (Well, probably not, but a man can dream!)

            3. There’s a little hole-in-the-wall Japanese store near me that sells green tea ice cream; it’s pretty damn good. The red bean ice cream is good too, although it will turn you into an unstoppable farting machine for the next eight hours.

        2. More likely, channa masala, biryani, dal, and raita.

      2. There are already three seats occupied by descendants of an ethnicity originating in Asia.

        1. Asian . . . Asian . . . Asian . . . goose!

          I don’t give a shit about the ethnicity of the next Supreme Court justice, and any President who picks justices on that basis should be ridiculed for doing so.

          The job of Supreme Court justice is to protect our rights, and they should be chosen on the basis of their ability and willingness to do that. Not on the basis of their fucking ethnicity.

          1. Kelo. Heller. Scalia voted for individual liberty in both cases.

      3. Is he one of those atypical Indians who are interested in politics? Indians are the most apolitical people I’ve been around.

        1. Keep the racist stereotypes to yourself.

          They probably don’t have time to get involved in politics because they work all night at their family’s convenience store or donut shop.

          1. Bill Gates and Jeff Bezos own donut shops?

  16. What if Obama gets the seat?

    1. If you live in a state with a Republican running for the Senate, you might want to vote for the Republican regardless of whether you’re voting Republican for President.

    1. We should try to set her up with Agile Cyborg.

      1. I just felt bad about my other links recently. Today we need some eye candy.

        1. That video is the tits!

    2. I’m starting to wonder if Asia has the weird market all cornered and wrapped up.

      1. Germany says hi

    3. What the hell was that?

  17. He also believed that putting an actually innocent person who was wrongfully comvicted to death wasn’t somehow a due process violation.

    1. Yes, and that’s exactly the way he put it, too. He also thought that desperate poor teenage girls should be forced into back ally coat hanger abortions–and bleed to death and die. And that’s exactly the way he put it.

      1. I don’t really care how he put it. If that was the practical effect of his decision, then summarizing it that way is only appropriate.

  18. I think it’s time to get some conspiracy theory going here. I’m armed with my coffee and tin foil hat, so here goes.

    Didn’t the SCOTUS just stay Obama’s dream green act a couple of days before Scalia was found dead? And wasn’t he one of those who were guilty of defying the emperor’s wishes?

  19. I think Scalia’s biggest mistakes were his concurrence in Raich and his decision in Chevron, which requires federal judges to defer to administrative agencies on issues of statutory interpretation. In the latter case I think even Scalia realized he had made a mistake and was searching for a way to dial it back.

    The overall theme of Scalia’s jurisprudence was to restrict judicial discretion. He was the product of the same Progressive legal academia that I encountered in law school, which was pushing the notion of “law as a tool of social change,” that is, of imposing the Progressive agenda through the courts when they could not succeed through the democratic process. (I was frequently told that when the political branches “failed to act” on “critical social issues,” the Judiciary was “forced” to “step in.”) Conservatives like Bork and Scalia sought to counteract this by tying judges’ hands through adherence to original Constitutional intent, through textual analysis of statutory language, deference to administrative agencies on issues of statutory interpretation, and, ironically, adopting the same “anti-Lochner” posture that the Progressives themselves had urged half a century earlier.

    This overall theme is what explains Scalia’s mixed legacy on liberty issues. He could not bring himself to accept judicial activism in support of personal liberty without, in his view, re-opening the door to Progressive judicial activism.

    1. But the left will go through that door whether it’s open or not.

      Following rules makes no sense if the other side doesn’t and the rules aren’t enforced.

    2. This whole activism vs restraint meme is fucking stupid. If congress passes 100 unconstitutional laws, then SCOTUS is going to look god damn activist. If they pass 100 constitutional laws, they are going to look damn restrained.

      1. SCOTUS will only look activist or restrained if it actually takes the constitution into account, which it often doesn’t do. There is no guarantee that those 100 unconstitutional laws will be recognized as unconstitutional by the courts.

    3. The idea that we have administrative agencies is bad law. I don’t know if was chevron that allowed congress to delegate it law making authority or if even Scalia was on the court when that decision was made. But I am confident he would have been on the wrong side. We now have an unnaccountable 4th branch of government: the DEA, FBI, ATF, IRS, EPA, etc. And SCOTUS is the ones allowed this to happen and it was their whole fucking job to stand guard for this kind of power creep. The institution of SCOTUS is worthy of nothing less than contempt.

      1. Scalia authored Chevron. But there have been indications in his more recent decisions that he had begun to rethink his position on deference.

        Look, I do not claim to agree with all of his jurisprudence. His refusal to accept the concept of unenumerated rights was particularly disappointing. I was merely attempting to explain its roots as a reaction to Progressivism.

        1. Stevens authored Chevron, which was two years before Scalia was on the bench.

          1. You are correct. My mistake. This is why I should not post comments before my morning coffee.

            However, I am partially correct that Scalia did affirm and expand the Chevron doctrine, most recently in the 2013 decision in City of Arlington v. FCC, when he sided the the liberal justices to hold that courts must defer to an agency’s interpretation of statutes even when the interpretation related to the agency’s determination of its own jurisdiction.

    4. “…his concurrence in Raich and his decision in Chevron, which requires federal judges to defer to administrative agencies on issues of statutory interpretation.”

      A complete abdication for the court system as far as I am concerned. This required a special kind of stupid.

  20. I am glad to see him dead. The idea that he was and origanlist that kept congress limited to the small list of power in Art I, Section 8 is a joke. He was an originalist when it suited him. He expanded police power, reduced their accountability. He was a horrible defender of the individual against the government. He wrote the opinion that destroyed the Republic: Town of Castle Rock v. Gonzales. IMHO, this cased breached the social contract that is the constitution. If the State has no duty to protect me, then I must take that burden on my own. I might as well live in Hobbe’s State of Nature.

    You can give this dead fucker a lot of the credit for the fact that pigs can murder with impunity. fuck him. Good riddance.

    1. Do you imagine his replacement will be better or worse?

      And why?

      1. That’s what I was thinking. It’s a laughable prospect.

      2. Oh, they will probably be worse, but I don’t think it matters. The republic is dead. This is no longer a republic of limited enumerated powers. Bush gave us that Fuckwith Roberts who saved Obama’s ass twice. So the idea that a Republican president will give a law abiding judge is a weak one. SCOTUS has allowed the commerce clause and taxing authority to swallow the entire rest of the constitution

        Raich, Kelo (yes I know Scalia dissented), King, v. Burwell, Castle Rock, v. Gonzales, chevron, that bong hits 4 jesus speech case, and many others. SCOTUS just is so consistently wrong. One man is not going to reverse the trend of increasing the state’s power over the individual while shielding state actors from any modicum of malfease much less murder

        1. That last sentence is written poorly.. SCOTUS shields state actors from any accountability for their malfeasance. Oh…..that SCOTUS decision that said that cops could make “reasonable” mistakes in the law. It was in the last two or three years, I think. Add that one to the list.

        2. Heller, Citizens United, and Hobby Lobby have decreased the state’s power. Bong Hits 4 Jesus case and even King v Burwell were very minor points that were being quibbled over.

          1. And they are all primed to be erased by the Progressives.

        3. “Oh, they will probably be worse, but I don’t think it matters. The republic is dead. This is no longer a republic of limited enumerated powers.”

          We still have certain rights and liberties to lose. You can still go out and buy yourself an AR-10. You can still go open yourself a business.

          The Republicans are better poised to protect our rights now than they were under Bush, better than they were before the Tea Party. I think some of the things we still have are important and worth defending.

          If and when those things go, like our Second Amendment rights, things will be much worse than they are. We may live to see the rule of law break down completely–but Trump, Sanders, or Hillary won’t have the popular support to push things that far. They”ll be hamstrung by their own unpopularity.

          We’ve just had a terrible run under Obama, a President who has dedicated himself to division and tearing America apart. I believe Obama genuinely hates America for being racist and capitalist, and we’re seven years into his program. We had eight years under Bush the Lesser, which were trying times for the Constitution, too. But that 16 year national nightmare may be over.

          If we can keep a progressive from getting an SC justice confirmed, things may improve once Obama is gone–no matter who is the next President.

          1. Can you say “oligarchy”? I knew you could.

          2. I am glad to see him dead

            I’m delighted Scalia is gone, though I would have much rather seen him impeached for outrageously violating his oath (along with most of congress and the rest of the bench-warmers on SCOTUS) than go quietly the way he did.

            Heller is a good example of Scalia’s incompetence (and the article says it was the decision he was most proud of, oy)

            Did the DC law infringe on the right to keep and carry? Answer: Yes, of course it did, and blatantly so. Therefore, it clearly fails the test of constitutionality.

            Everything else in that long winded pile of scut was nonsense, particularly the appeal to precedent with regard to carrying weapons in schools and public buildings.

            Good riddance, indeed.

    2. He was a dissenter on Kelo. Remember, Kelo?

      So, all you care about is gay marriage.

  21. And the idea that a Republican will give us a “better” justice that might actually limit the power of the state…..puuuulease. That fuckwit Roberts was appointed under Bush. And he save Obama’s ACA, twice. Fuck him too.

    The only one maybe worth a fuck is Thomas, but he is too busy looking in the panties of 11 year old girls for advil.

    REally, they all should go in the woodchpper.

    1. The idea that a progressive will give us a justice that’s better on the First or Second Amendment is ridiculous.

      Using the force of government to make individuals sacrifice their rights for the common good is the definition of progressive.

      1. What? That’s the definition of government.

        1. No.

          The legitimate purposes of government are 1) to protect our rights and 2) comedic relief.

          1. Well at least they’re doing a good job on one of those.

          2. protect our rights


            You’ve made a decent argument about why no government is morally legitimate, though.

            1. When they are legitimate, they are legitimate to the extent that they protect our rights.

              Certainly, none are perfectly legitimate, and some are more legitimate than others. Ours puts murderers and armed robbers in jail, and protects our rights in various other ways. It would be a far more legitimate government if it did a better job of protecting our rights, that’s for certain.

              1. Our government also puts people in jail merely for exercising their rights. All sorts of innocent people are in prison, or even dead, thanks to our great government.

                In the end, protecting us from bogeymen like murderers and armed robbers is less important than having the government itself respect our rights.

      2. One more progressive on the court, and that is all but assured now, and you can kiss the 2nd amendment goodbye, probably the 1st as well, and start planning for economic destruction at the hands of environazis.

        1. The 2nd is already dying a slow death. Yes, I agree that another progressive will kill the 2nd. But, IMHO, the velocity of history is already running in that direction…. Like the velocity behind a mile long freight train.

          1. And I think this insidious, incremental death of the 2nd is more painful to watch. I much rather some progressives have some cojonas to outright seek the repeal of the 2nd. That way, I could at least Identify my enemies easier.

        2. One more progressive on the court, and that is all but assured now, and you can kiss the 2nd amendment goodbye

          The 2nd? The government can, and does, forbid citizens to keep. The government can, and does, forbid citizens to carry. The word infringe has undergone as much of an outright inversion as has the word “interstate” in the commerce clause.

          The 2nd amendment has been gone for a long time. You can’t kiss it goodbye. You can only try to imagine what it would be like were it still here.

          probably the 1st as well

          Ever heard of a “free speech zone”? How about “pornography”?

          They killed the republic long ago. To the extent that it ever flowered. We live in an oligarchy here and now.

      3. Scalia dissented on Kelo. He deserves angel wings for that.

      4. I am not endorsing a progressing justice.

        1. Give me Lochner v. New York any day.

    2. Someday, a progressive appointment to the Supreme Court will uphold your conviction for making a statement like that last one in your post.

  22. I cried yesterday when I heard the sad news of Scalia’s passing.

    1. Yesterday I cried after the booger I was searching for turned out to be an inner nose scab, and pulling that thing out was not pleasant. But hey, I guess we both could have used a hug, right?

    2. I believe that in the future, they will point to Scalia’s death as the moment that made the outbreak of violence and the new civil war an immmenent outcome.

  23. Wouldn’t a line of defense against a majority-left SCOTUS with lifetime tenure be a constitutionally oriented Congress? Could such a Congress not repeal “iffy” legislation approved by the Court by narrowing new legislation that addressed the specific language of the Constitution? For example, if the Court ruled the right to bear arms only applied to members of the militia, Congress could then pass a law establishing every citizen as a member of the militia from age of birth until death.

    1. I’m pretty sure that the federal code already has a definition similar to that.

  24. watching proggie filth dance on the man’s grave made me want to give up on politics and humanity. trending on facebook: ding dong the witch is dead. what a bunch of raging assholes.

    1. That would be a very bad situation to be in.

      It would be much, much better if a new Amendment was passed that made it unequivocally clear that the right to keep and bear arms is an individual right.

      For that you would need a 2/3 majority in the House (easy right now) and Senate (I also think that would be doable) to propose an Amendment. Then you need 38 states to ratify. Just going by party control, you have 28 in total Republican control. So you need ten more.

      Of those that are not totally under Republican control, I could see NM, VT, NH, ME, WV, NE, KY, and IA ratifying. So you need two more. With a concerted push, NV and maybe CO being brought on board. Remember, the people voting in the states would mostly not be coming from state-wide elections.

      My point is, it would be a battle, but one I think we could win. A SCOTUS decision overturning Heller and McDonald would motivate gun owners like nothing else I can think of.

  25. I just knew I would find an appropriate quote:

    “But now their art and knowledge were baffled; for there were many sick of a malady that would not be healed; and they called it the Black Shadow, for it came from the Nazg?l. And those who were stricken with it fell slowly into an ever deeper dream, and then passed to silence and a deadly cold, and so died.”

    No tears for Scalia the Scum.

  26. So I understand the concern about the 1A and 2A, but realistically, how would a future court be able to overturn Heller and McDonald? Those seemed pretty straightforward and clear decisions, so wouldn’t a future court need some justification for even revisiting them, let alone overturning them? I’m not saying that’s impossible (obviously a motivated court *could* do it), but my impression of most of the justices is that they really do respect the Court as an institution and would be reluctant to so blatantly overturn a clear decision without a good justification for doing so.

    1. It’s simple, a blue state takes it upon themselves to enact legislation banning guns and also legislation restricting speech with regards to elections. They get challenged to the Supreme Court, are rubber stamped, then banning guns or speech are ok.

      Step 2 is the huge push for progressives to get congressional majorities again, then they pass the federal gun and speech bans. Hell they likely won’t even need a majority to re-pass campaign finance reform that limits free speech once Citizens United is struck down.

  27. You’re totally misinterpreting things because you erroneously associate the political right and left with the Republican and Democratic parties. There is no such binding association between the parties and political ideology. The RINOs are just as far left, if not farther left on the political scale than the Donkeys.

    1. You are confusing the issue. Ds register of a scale of lefty statist and super lefty open socialist statists. While there is a statist wing to Rs it is also home of constitutionalists like Ron/Rand Paul and Ted Cruz- You may disagree with them on some of the issues, but you are sure to disagree with Ds on almost every issue. That is a pretty big difference.

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  35. As always, Libertarians are disappointed that someone is not perfect.

    1. I’m more disappointed that he was a sophist who didn’t know what “originalist” even meant. And that he was never impeached, but instead left the court quietly. That *is* disappointing.

      But hey. At least he is gone. The rest of them are pretty old too. It almost gives one hope for a certain kind of justice. No pun intended.

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  39. As always, Libertarians are disappointed that someone is not perfect.

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