Scalia Dissents

I am almost finished with this book edited and with commentary by Kevin A. Ring. Scalia Dissents is a collection of opinions written by Justice Scalia. While not finished with it, I thought I would share my thoughts about it anyway. The book contains a handful of thoughtful, well-written, sometimes funny, and always insightful opinions. Scalia is a master wordsmith. He presents his arguments in a very readable yet artful fashion. The opinions cover many of today's most important issues from free-speech to abortion to separation of powers. This book is a must read to understand how a 'constructionalist' Justice sees the role of the Supreme Court. Below are some excerpts from the book that I found particularly interesting for various reasons:

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.

...

It is comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.

Morrison v. Olson, 487 U.S. 654 (1988)
Scalia Dissenting
Dealing with separation of powers. Emphasis added.



It is not reasoned judgment that supports the Court's decision; only personal prediliction. Justice Curtis' warning is as timely today as it was 135 years ago: "when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

Liberty finds no refuge in a jurisprudence of doubt.

Webster v. Reproductive Health Services, 492 U.S. 490 (1989)
Justice Scalia, concurring part and Concurring in the jdugment.
Dealing with abortion. Edited for format and internal citations omitted.



There is something to be said for popular abolition of the death penalty; there is nothing to be said for its incremental abolition by this Court.

Atkins v. Virginia, 536 U.S. 304 (2002)
Justice Scalia dissenting.
Decision finding execution of mentally retarded criminals is cruel and unusual. Scalia notes that the 5th Amendment specifically contemplates the death penalty: "No person should be held to answer for a capital ... crime ..." and "nor be deprived of life ... without due process"



These views, of course, prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation cermonies themselves, and that is a component of an even more longstanding American tradition of non-sectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

Lee v. Wiseman, 505 U.S. 577 (1992)
Justice Scalia dissenting.
Emphasis added.



The virtues 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 society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law.

.....

Our task is to clarify the law - not to muddy the waters, and not to exact overcompliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo.

United States v. Virginia, 518 U.S. 515 (1996)
Scalia dissenting.
Dealing with a state sponsored all-male military academy.




Perhaps voters do detest these 30-second spots—though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment program­ming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has “substance” and “depth” (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.

...

The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come— and always, always, with the objective of reducing the excessive amount of speech.

McConnell v. FEC, 124 S. Ct. 619 (2003)
Scalia concurring in part and dissenting in part.
Dealing with McCain-Feingold Act