- The Washington Times - Sunday, February 14, 2016

The arguments were nearly an hour old in December’s affirmative action case when Justice Antonin Scalia, apparently tired of dancing around the crux of the matter, plowed forward: Maybe black students were done a disservice by being recruited to top-notch colleges for which they weren’t prepared.

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” said Justice Scalia, cutting through decades of academic orthodoxy.

There were audible gasps in the courtroom, but there probably shouldn’t have been. It was classic Scalia — biting, iconoclastic and without regard to the furor his words would ignite outside the courthouse.

In his comments from the bench, out of the courtroom or even in his forceful majority opinions, concurrences and dissents, Justice Scalia was nothing if not blunt during his 30 years in the judiciary.

The 79-year-old justice died Saturday while traveling in Texas, from what coroners said Sunday were natural causes. His body was taken to a funeral home in Texas and will be flown back to his home in Northern Virginia on Tuesday after the family decided Sunday an autopsy wasn’t necessary.

His death Saturday created an immediate political crisis.

Democrats insisted that President Obama get the chance to nominate Justice Scalia’s replacement, with the chance to fundamentally force the court to the left and fully reject Justice Scalia’s legacy. Republicans dared Mr. Obama to do his best, saying they control the Senate and have the power to refuse his pick.

Mr. Obama ordered flags at federal facilities, including the White House, to be flown at half-staff “as a mark of respect” for the late justice until his final interment.

Even as the unseemly fight played out just hours after news of the death reached Washington, the legal community mourned the loss of a justice they declared great.

Antonin Scalia was witty, warm, funny, and full of life. He was not only one of the most important justices in the nation’s history; he was also among the greatest,” Cass R. Sunstein, a former law colleague at the University of Chicago and longtime intellectual opponent of Scalia‘s, wrote in a column on Bloomberg View.

President Reagan tapped Justice Scalia in 1982 to be a judge on the federal Court of Appeals for the D.C. Circuit, where colleagues praised his intellectual honesty.

He was confirmed to the Supreme Court in 1986 on a 98-0 vote. Congress watchers said the Senate was worn out from fighting over the elevation of Chief Justice William H. Rehnquist, and Justice Scalia, whom Reagan tapped to fill Rehnquist’s associate justice seat, sailed through the nomination process.

Legal scholars said his opinions — 315 majority decisions, 361 concurrences and 317 dissents — were a tour de fierce, usually defending what he believed the Constitution does not do: grant the right to an abortion, establish a right to marriage for same-sex partners or allow Congress to limit political speech — including burning the American flag.

Mr. Sunstein wrote that the core of Justice Scalia’s legal genius was his fealty to the rule of law.

That underpinned his “originalism,” the belief that the Constitution should be interpreted based on the understanding of the framers, rather than expanded to meet the wants of a modern world.

He was originalism’s chief prophet, and his fans said he notched some historic successes, including writing the opinion in the 2008 Heller decision, which established that the Second Amendment protects an individual’s right to own and carry firearms.

But scholars said he was not the swing vote that Justice Anthony M. Kennedy often was, so his most forceful writing was usually deployed in dissent.

He castigated his fellow justices’ reasoning as “egotistic” and “hubris,” compared their wisdom to that of a fortune cookie and said they wanted to make him “hide my head in a bag” — and that was just in one single dissent, last year, opposing the court’s same-sex marriage ruling.

In other dissents, he dubbed his colleagues’ thoughts “ludicrous” and “absurd” and repeatedly warned of the coming death of thoughtful jurisprudence — and adherence to constitutional strictures.

“His ability (and willingness) to engage in nastiness, particularly directed at other justices’ opinions, is unparalleled,” Richard L. Hasen, a law professor at the University of California’s Irvine School of Law, wrote last year in an evaluation, dubbing Justice Scalia the most caustic justice in history.

Some have become legendary, including his 1992 dissent in Planned Parenthood v. Casey, in which he railed against the court’s reaffirmation of the basic outlines of the Roe v. Wade abortion decision and the 2015 same-sex marriage dissent.

Writing in Politico, Michael W. McConnell, director of the Constitutional Law Center at Stanford University, said Justice Scalia had the power to compel agreement even from ideological opponents.

“By sheer force of intellect and personality, Scalia helped to move the court from a somewhat sloppy, results-oriented, center-left institution to a more intellectually rigorous center-right court that forefronts text and history over other modes of interpretation,” Mr. McConnell wrote.

“Every year when I teach constitutional law, liberal law students will put their hand up in class and, sheepishly, say something like, ‘I never thought I’d say this, but I agree with Scalia.’ On separation of powers. On freedom of speech. On how to read the Constitution,” Mr. McConnell wrote.

In a strikingly insightful interview with New York Magazine in 2013, Justice Scalia pondered his own writing and said he wondered why being a justice seemed to be getting easier. At first, he debated with himself whether it meant it was time to go.

But then he concluded things were easier because, after nearly three decades on the court, so many of the cases he faced were extensions of those he heard before — “which I dissented from in the first place!”

Indeed, the Texas affirmative action case he sat on in December is dubbed Fischer II because it is the second time the same case has been before the court.



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