I would be lying if I claimed I regularly read SCOTUS opinions. Even as a law student, I found Con Law to be a dreadful experience. I'm a transactional lawyer. I read Delaware Chancery and tax court opinions. Since I started practicing in 1998 I had not read a complete SCOTUS decision until Citizen United, a decision that focused on entity theory. This being said, I have read excerpts which lead to my secret love affair with one justice: Antonin Scalia. This love affair was based on two simple facts: he wrote well and he was funny. He had a distinct voice that I will miss.
I pulled a couple of quotes from Scalia as I read about his life this weekend:
“I am a textualist. I am an originalist. I am not a nut.”
Who but a smart, witty man would make a comment like this about himself? It is almost Hemingway-esque in its straightforward simplicity. While the law is serious, nothing more so than the law as noodled upon and passed down by the SCOTUS, we can all appreciate Scalia's perspective on his own position on legal theory.
“I don’t like scruffy, bearded, sandal-wearing people who go around burning the United States flag.”
Ironically, in 1989 Scalia voted to strike down a law banning flag burning. This sounds like something my grandmother (God rest her soul) would mutter over Thanksgiving dinner when us kids "got to talkin about politics." When I see these words attributed to a staunch conservative whose death will lead to a battle royale on the Hill, I cannot help but smile much as Scalia was often photographed with a twinkle in his eye and a genuine smile on his face.
In his dissent in United States vs. Windsor, Scalia critiques the majority opinion as “couched in a style that is as pretentious as its content is egotistic.”
Let's just say Scalia was not afraid to state his opinion. He did not pull a punch or hide behind rhetorical niceties. He called it as he saw it in precise, unambiguous statements. It’s interesting to consider the "opinions" of Scalia embodied in a lifetime of scholarship and service and contrast them against the often hateful and ridiculous statements of candidates for President. I can only imagine what these candidates will say about Obama's ability to appoint a replacement for Scalia.
Regardless of politics, as a profession, let's remember Scalia as an amazing legal scholar and public servant. Whether we like it or not, the next few weeks or months are going to make for amazing political theater. And this political theater will be in our branch of the government. Article II, Section 2 of the U.S. Constitution states:
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.
Whether we like or dislike the positions of a single justice or the party of a sitting president, we understand the important and critical role the SCOTUS plays in our system of governance and we know who appoints those justices. We are going to have an even crazier election cycle than we thought.
Get Ready to Rumble!!!!!!