Justice Scalia Leaves His Mark In Biting, Clever Dissents

Posted on 02-18-2016 by
Tags: Industry Trends , Latest Headlines & Stories , Law 360

The article below has been republished in full courtesy of Law360, written by Stewart Bishop.

Former U.S. Supreme Court Justice Antonin Scalia, who died on Saturday after serving 29 years on the high court, once said that a good, hard-hitting dissent keeps you honest. By this metric, his fellow justices are honest indeed.

Sometimes holding his colleagues' feet to the fire or chastising lawmakers he thought were enacting vague legislation and passing the buck to the courts, Justice Scalia’s dissenting opinions could at times be abrasive to opponents and allies alike.

But his three decades of dissenting jurisprudence, written with his characteristic wit and linguistic flair, have brought about some of his most memorable remarks. 

Richard D. Bernstein, a partner at Willkie Farr & Gallagher LLP and a former law clerk to Justice Scalia, lauded his capacity for language and said the late judge’s most quotable lines were all his own words.

“It was a gift, a way of encapsulating things that both cut to the core of the matter, and he said it in a way that you didn’t have to have three graduate degrees in order to understand what he was talking about,” Bernstein told Law360 on Sunday.

Troutman Sanders LLP partner Christopher G. Browning Jr., a former solicitor general of North Carolina who argued five cases before the justice, remembered his dissents as crisp, to the point and biting: works that you just can’t help but read.

“It’s the confrontation and the drama that really gets your attention, combined with the sense of humor that he puts into it, and the informal language and approach to the way he writes,” Browning said. “His dissents were well-read and extremely powerful, and over time, have had great influence both on the direction of the court as a whole, but also to people who are following the Supreme Court and legal issues before the court."

Here, Law360 takes a look at some of Justice Scalia's most memorable lines when the conservative icon was writing in opposition.

'What Is Golf?'

The Supreme Court in PGA Tour v. Martin was asked to consider whether the Americans With Disabilities Act of 1990 provides access to professional golf tournaments for players with disabilities. The PGA Tour had required that all golfers walk between holes in its tournaments, but Casey Martin had asked the tour for permission to use a golf cart, saying a degenerative circulatory disorder prevented him from walking the course.

In a 7-2 decision, the Supreme Court held that Title III of the ADA prohibits the PGA from denying Martin equal access to its tours on the basis of his disability.

Justice Scalia, joined by Justice Clarence Thomas, dissented, saying the court was employing an overbroad interpretation of Title III, which he said covers only clients and customers of places of public accommodation. Taking aim at the majority for its finding that allowing Martin to use a cart would not fundamentally alter the nature of the game, Justice Scalia mocked the court for deciding what makes the game of golf tick. 

He wrote: “If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power 'to regulate Commerce with foreign Nations, and among the several States,' to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a 'fundamental' aspect of golf.”

The case is PGA Tour Inc. v. Casey Martin, case number 00-24 in the Supreme Court of the United States.

'I Would Hide My Head in a Bag'

The Supreme Court in June ruled that there is a constitutional right to same-sex marriage under the 14th Amendment, striking down state-level bans on the practice. In a 5-4 decision authored by Justice Anthony Kennedy, the court held that marriage is a fundamental right supported by the 14th Amendment, regardless of whether a marriage involves same-sex or opposite-sex partners, and that states must license same-sex marriages and thus also recognize out-of-state same-sex marriages.

Justice Scalia, Chief Justice John Roberts, Justice Thomas and Justice Samuel Alito all issued separate dissents, but true to form, Justice Scalia’s was perhaps the most scathing, arguing that the decision was a hubristic “judicial putsch,” or coup, and a “threat to American democracy.”

In a footnote, Justice Scalia did not mince words about his view of the sweeping language of the majority opinion.

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

The cases are Obergefell et al. v. Hodges et al., case number 14-556, DeBoer et al. v. Snyder et al., case number 14-571, Bourke et al. v. Beshear et al., case number 14-574, and Tanco et al. v. Haslam et al., case number 14-562, in the Supreme Court of the United States.

'Interpretive Jiggery-Pokery'

The Supreme Court in June saved President Barack Obama's key domestic legislative achievement when it ruled 6-3 that consumer subsidies can continue flowing through all of the Affordable Care Act’s health insurance marketplaces, wiping out a grave threat to the landmark health care law.

Writing for a 6-3 majority, Justice Roberts said that Obamacare’s authorization of subsidies in insurance exchanges "established by the state" also covers exchanges established by the federal government. That conclusion may seem counterintuitive, but it's supported by looking beyond the ACA's text and considering why lawmakers passed the law, the chief justice wrote.

Justice Scalia's dissent, joined by Justices Thomas and Alito, accused the majority of improperly rewriting the plain text of the law in order to make it function better.

“The Act that Congress passed makes tax credits available only on an 'Exchange established by the State.' This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

Justice Scalia further berated the court for upholding tax subsidies to federal exchanges based on other parts of the ACA that the majority said presuppose them.

“The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”

Justice Scalia was equally frank in his feelings about the majority’s argument that a broad reading of “the State” is supported by the statutory definition of a qualified individual as a person who lives in the state that established the exchange. If construed otherwise, the majority reasoned, there would be no qualified individuals on federal exchanges.

“Pure applesauce. Imagine that a university sends around a bulletin reminding every professor to take the ‘interests of graduate students’ into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has ‘graduate students,’ so that ‘graduate students’ must really mean ‘graduate or undergraduate students’? Surely not.”

The case is David King et al. v. Sylvia Mathews Burwell et al., case number 14-114, in the Supreme Court of the United States.

'This Wolf Comes as a Wolf'

In Morrison v. Olson, the Supreme Court examined the constitutionality of the Ethics in Government Act of 1978, which allowed Congress to appoint an independent counsel to investigate and potentially prosecute certain high-ranking government officials for violations of federal criminal laws.

In a 7-1 order, the Supreme Court held that the EGA does not violate the appointments clause of Article II, nor does it run afoul of the separation of powers doctrine, since it doesn’t impermissibly interfere with the president's exercise of his constitutionally appointed functions.

But Justice Scalia said the law subverted the separation of powers. He argued that it is not for the court to determine how much of the purely executive power of the government must be under the full control of the president, since the constitution clearly assigns all such power to the president.

“That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that ‘a gradual concentration of the several powers in the same department ... can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

The case is Morrison v. Olson, case number 87-1279 in the Supreme Court of the United States.

'Interior Decorating'

In Lee v. Weisman, the high court ruled 5-4 that having a member of the clergy deliver prayers at an official Rhode Island public school graduation ceremony violated the establishment clause of the First Amendment.

Writing for the majority, Justice Kennedy said the degree of school involvement made it clear that the graduation prayers “bore the imprint of the State,” and put students who did not wish to participate in “an untenable position.”

But Justice Scalia accused the majority of laying waste to long-standing American traditions of prayers at public graduations and other ceremonies. 

“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.”

Justice Scalia wondered if the high court would now separate graduation prayers from other instances of public "preservation and transmission of religious beliefs,” such as religious holiday displays on public land, on the grounds that they involve "psychological coercion."

“I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock hard science compared to psychology practiced by amateurs.”

The case is Lee v. Weisman, case number 90-1014 in the Supreme Court of the United States.

--Additional reporting by Melissa Maleske, Daniel Wilson and Jeff Overley. Editing by Christine Caulfield and Jeremy Barker. 

This article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.

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