Wednesday, February 17, 2016

The tragedy of Antonin Scalia: How one of the most brilliant jurists of his generation went so wrong -

The tragedy of Antonin Scalia: How one of the most brilliant jurists of his generation went so wrong -
by Andrew Koppelman // Northwestern U. Law School

Almost everyone either loved Antonin Scalia or hated him. I’m ambivalent. He was a brilliant jurist and a joy to read. He was wrong about same-sex marriage, but Anthony Kennedy, who wrote the somewhat daffy opinion recognizing it, deserved the ridicule Scalia piled onto him. On crucial occasions, however, Scalia’s dedication to judicial restraint, the main theme of his jurisprudence, evaporated. Then he turned into a partisan hack, with no awareness that this had happened. It is precisely because he was a great man that he was sometimes a tragic figure.

The most momentous of these was Bush v. Gore, the case in which the Court, by a 5-4 margin, installed as President the catastrophic George W. Bush, who had lost the popular vote by half a million votes. The vote counting in Florida wasn’t finished, and we will never know how it turned out. The preposterousness of the Court’s reasoning was thoroughly explored, then quickly forgotten, because the decision intentionally had no effect on the later course of constitutional law. From the perspective of judicial restraint, Mr. Bush’s attempt to circumvent the counting of votes should have presented an easy case. The Constitution provides a detailed procedure for selecting the President. That procedure does not authorize the Supreme Court to pick the President it likes. It has no role for the Court at all. Can you imagine what Scalia would have written if Democratic appointees had tried to pull something like this?

And then there is his remarkable dissent in the Obamacare case, where he tried to blow up the entire statute on the basis of a previously unheard-of constitutional objection. That, too, never had any business being in the Supreme Court. The Court decided way back in 1819 that Congress has the power to choose any convenient means for carrying out its enumerated powers. Scalia had never before questioned that. But that has to mean that the mandate to buy insurance is well within Congress’s discretion. Why wasn’t he convinced? Because “there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insur­ance premiums and ensuring the profitability of insurers could be achieved.” Not only does this deny Congress the discretion to decide how to do its job, it doesn’t even make sense in terms of the program’s goals – which, Scalia here forgets, also included reducing the number of Americans who had no health insurance!

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