Who showed up at Scalia’s funeral — and who didn’t

Remembering Justice Scalia

February 20 Washington Post
The farewell to Supreme Court Justice Antonin Scalia took place in the resplendent Basilica of the National Shrine of the Immaculate Conception, the largest Catholic church in the United States. Hundreds of friends and admirers, many from the top echelons of Washington’s legal and political worlds, gathered for a send-off that was supposed to be, as Washington Archbishop Donald Cardinal Wuerl joked, in his opening remarks, “a simple parish family Mass.” A knowing laugh rippled through the pews.

Funerals in Washington are rarely simple when it comes to such larger-than-life figures as Scalia. For many in the crowd, it was a day to mourn a man they knew and loved. For others, showing up was an affirmation of conservative bona fides and membership in this city’s power elite.

Wuerl name-checked a few VIPs in attendance: Chief Justice John G. Roberts Jr.; Vice President Biden; former vice president Richard B. Cheney; former House speaker Newt Gingrich (whose wife, Callista, sang in the choir); and Catholic University President John Garvey.

Others created a frisson when they arrived, included Attorney General Loretta E. Lynch; Sen. Ted Cruz (a former Supreme Court clerk who stepped away from the campaign trail to attend the service); and Ted Olson, the renowned Washington lawyer who argued the 2000 Bush v. Gore case before the Supreme Court and, in 2013, the test of California’s same-sex marriage ban. There was also a section of judges from the U.S. Court of Appeals for the D.C. Circuit — including three rumored to be in the running for Scalia’s seat: Merrick Garland, Sri Srinivasan and Patricia Millett.

But it was an absence that created a firestorm. Conservatives loudly criticized President Obama for snubbing the longest-sitting justice when the White House announced he would not attend. Rejecting the notion that the decision was political, press secretary Josh Earnest defended sending Biden as “somebody that had his own personal relationship with Justice Scalia and his family.” What’s more, he said, Biden’s security footprint would be less disruptive. “We believe we have settled on an appropriate and respectful arrangement,” he said.

The president and first lady paid their respects Friday, when Scalia’s body lay in repose in the Great Hall of the Supreme Court.

It’s rare for a justice to die in office, so there’s little precedent for presidential attendance. In 2005, President George W. Bush spoke at the funeral of Chief Justice William H. Rehnquist. President Dwight Eisenhower came to the service for Chief Justice Fred Vinson in 1953 but did not attend the funeral of Associate Justice Robert Jackson a year later. All the other justices of the past six decades died after leaving the bench, and presidents attended some of their funerals but skipped others.

Politics aside, the presence of a president is still considered a big deal, the ultimate posthumous tribute in this most status-conscious of cities. There is always the discreet rubbernecking as mourners look to see who’s seated in front.

Scalia’s son, the Rev. Paul Scalia, officiated, offering a heartfelt homily to the man he and his eight siblings called “Dad.” Bible verses were delivered by Leonard Leo, vice president of the conservative Federalist Society and Associate Justice Clarence Thomas. Scalia’s extended family sat in a large section at the front, with his former court colleagues and miscellaneous politicians at the section to their left.

Because the service was a traditional Mass, there was less of the posturing that has characterized other notable farewells. The 2001 service for Katharine Graham was a bipartisan gathering filled with her A-list friends: Bill Clinton, Bill Gates, Henry Kissinger, Warren Buffett, Yo-Yo Ma and a busload of senators. More than 4,000 people attended that ceremony at the National Cathedral, guided to their appointed seats by ushers.

Diplomat Richard Holbrooke may never have gotten the secretary of state title he coveted, but two U.S. presidents — Obama and Clinton — attended his 2011 invitation-only memorial at the Kennedy Center. VIPs had reserved seats; B-listers were relegated to general-admission tickets.

Presidents Bush and Obama attended the 2008 private funeral for “Meet the Press” moderator Tim Russert, with 1,500 others showing up for a memorial that included Condoleezza Rice, Madeleine Albright, John F. Kerry, Alan Greenspan and Mario Cuomo. The event, complete with a surprise performance by Bruce Springsteen, was televised live on MSNBC. The Russert memorial was famously mocked by New York Times reporter Mark Leibovich, who used the gathering to open “This Town,” his withering 2013 look at D.C.’s political and media culture. “You had the Democrats, the Republicans, the Clintons, the newscasters, Barbara Walters. I mean everyone was there,” he told NPR. “And I remember sitting there, and I was struck by how this memorial service for a beloved newsman could so quickly degenerate into a networking opportunity. People were throwing business cards around, people were trying to get booked on various shows. The funeral as cocktail party.”

Scalia’s Mass, in contrast, was a dignified affair, with soaring organ music, incense and more than 100 priests following his casket out the door. Tweeting was banned, glad-handing kept to a respectful minimum, and reporters were prohibited from approaching anyone.

Very non-Washington, as these things go. Scalia would have loved it.

Scalia on Abortion

Since Framers didn’t allow abortion, the issue is settled

Edwin Meese, Reagan’s attorney general, provided a framework for conservative critique when he called for a “jurisprudence of original intention.” The words of the Constitution, he said, meant only what the authors of the document thought they meant; the meaning of the words did not evolve over time. This was an unprecedented view. Most justices thought that the words of the Constitution were to be interpreted in light of a variety of factors, beyond just the intentions of the framers.

The debate over original intent amounted to a proxy for the legal struggle over legalized abortion. No one argued that the authors of the Constitution intended for their words to prohibit states from regulating a woman’s reproductive choices; to Scalia, that ended the debate over whether the Supreme Court should protect a woman’s right to choose. If the framers did not believe that the Constitution protected a woman’s right to an abortion, then the Supreme Court should never recognize any such right either.

Justice Scalia believed if a ‘right’ was not specifically called out in the Constitution, the Supreme Court had no business deciding an issue. The Supreme Court does not make law and any SCOTUS decision should not be used as a basis for future legislation. Rather, Scalia believed legislatures should show  some backbone in the controversial issue of abortion and legislate . 

Scalia on Government Reform

Corporate political spending is free speech.

Justice Scalia wrote the concurrence on Citizens United v. Federal Election Commission on Jan 21, 2010:

Prior to the 2008 primary elections, Citizens United, a nonprofit corporation dedicated to educating the American public about their rights and the government, produced a politically conservative 90-minute documentary entitled Hillary: The Movie. This documentary covers Hillary Clinton’s record while in the Senate & the White House. However, The Movie falls within the definition of “electioneering communications” under the Bipartisan Campaign Reform Act of 2002 (“BCRA”)–a federal enactment designed to prevent “big money” from unfairly influencing federal elections–which, among other things, prohibits corporate financing of electioneering communications. The FEC [enforced the provision] of BCRA prohibiting corporations from broadcasting electioneering communications within 60 days of a general election. [The Supreme Court rules that this] violates the free speech clause of the First Amendment.

Justice Kennedy , Opinion of the Court (Roberts, Scalia, Alito, and Thomas concurring):

Some members of the public might consider “Hillary: The Movie” to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.

Justice Stevens (dissent joined by Ginsburg , Breyer, and Sotomayor)

Neither Citizens United’s nor any other corporation’s speech has been “banned.” All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment [allows that] is, in my judgment, profoundly misguided. Although I concur in the Court’s decision to sustain BCRA’s disclosure provisions, I emphatically dissent from its principal holding.

Scalia on Civil Rights

Flag-burning is anathema, but protected as free speech

Justice Scalia [made a] statement to law students in Illinois. “I never slept better than the night I voted in the flag-burning case,” he told the students in the Land of Lincoln. Justice Scalia was telling the students he knew deep down that he had voted honestly. He had faithfully interpreted the Constitution as he conscientiously saw it, as opposed to reading his personal or political views of what was right and just into the Constitution. Flag-burning was anathema to Justice Scalia the person. But his oath was to the law, including the higher law of the Constitution. In Justice Scalia’s view, the First Amendment’s free-speech provision protects unpopular expressions of opinion. Communications of popular views obviously require little if any protection from the law. It was the unpopular voice, the radical expression of viewpoint, that needed protection against the will of society.

Scalia on Environment

EPA’s Clean Air Act can regulate pollutants but not CO2

Justice Scalia wrote the dissent on MASSACHUSETTS v. EPA on Apr 2, 2007:

Numerous entities, including the Commonwealth of Massachusetts, asked the EPA to judge that carbon dioxide (CO2) was a pollutant causing global warming and, acting under the Clean Air Act (CAA), to make rules restricting its release by newly manufactured automobiles. The EPA declined to do so.

HELD: Delivered by Stevens; joined by Kennedy, Souter, Ginsburg & Breyer

The plaintiffs have standing for a federal case. Massachusetts, in particular could make a showing of injury (rising coastal water levels), causation (an incremental lowering of CO2 would be helpful), and remedy (the EPA could effect an incremental lowering). The EPA believed that Congress did not intend the EPA to regulate substances that cause climate change. The EPA, however, should find CO2 (among other gases) falls within the definition of a pollutant because it is a “substance” that is “emitted into the ambient air.”

DISSENT #1: Roberts dissents; joined by Scalia, Thomas & Alito

The plaintiffs do not have standing because they can show no concrete injury, the evidence of causation by greenhouse gases of rising coastal water in Massachusetts was minimal (and undercut by its own expert’s affidavit), and there was no showing that a rule issued by the EPA could provide measurable relief to the plaintiffs. The plaintiffs’ claim cannot truly be resolved by decision of a federal court.

DISSENT #2: Scalia dissents; joined by Roberts, Thomas, & Alito

It was a reasonable interpretation by the EPA of the CAA that Congress intended the EPA to regulate air pollution in the “ambient air,” that is, air at or near the surface of the earth, not the upper reaches of the atmosphere where greenhouse gases are said to have their detrimental effects. Further, nothing in the CAA, not even a petition for regulations, requires the EPA to make a “judgment” that a pollutant should be regulated, and the Court is not free to order the EPA to do so.

Scalia on Immigration

AZ feels besieged by immigrants & feds unwilling to fix it

The common perception that the federal government neither effectively polices the border nor aggressively enforces immigration laws evokes a strong popular backlash, reflected in laws enacted by several states seeking to control illegal immigration. Justice Antonin Scalia eloquently voiced that sentiment in his dissenting opinion to the US Supreme Court that struck down several portions of SB 1070. “Arizona bears the brunt of the country’s illegal immigration,” Scalia wrote. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.”

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Scalia and the 2nd Amendment

Second-Amendment--270x156Right to gun ownership is individual, not collective.

Justice Scalia wrote the Court’s decision on District of Columbia v. Heller on Jun 26, 2008:

Overturning DC’s handgun ban, the court ruled that the Second Amendment protects the individual right to own a gun for private use–not only in connection with service in a militia. The 5-to-4 decision, District of Columbia v. Heller, left unanswered questions, but also much room for continued gun regulation, short of an absolute ban.

HELD: Delivered by Scalia; joined by Roberts, Kennedy, Thomas, Alito

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. The Antifederalists feared that the Federal Government would disarm the people in order to disable the citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms.

Antonin Scalia, Justice on the Supreme Court, Dies at 79

scalia

Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas. He was 79.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice John G. Roberts Jr. said in a statement confirming Justice Scalia’s death. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released. A spokeswoman for the U.S. Marshals Service, which sent personnel to the scene, said there was nothing to indicate the death was the result of anything other than natural causes.

He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

Justice Scalia also disdained the use of legislative history — statements from members of Congress about the meaning and purposes of laws — in the judicial interpretation of statutes. He railed against vague laws that did not give potential defendants fair warning of what conduct was criminal. He preferred bright-line rules to legal balancing tests, and he was sharply critical of Supreme Court opinions that did not provide lower courts and litigants with clear guidance.

All of these views took shape in dissents. Over time, they came to influence and in many cases dominate the debate at the Supreme Court, in lower courts, among lawyers and in the legal academy.

By the time he wrote his most important majority opinion, finding that the Second Amendment protects an individual right to bear arms, even the dissenters were engaged in trying to determine the original meaning of the Constitution, the approach he had championed.

That 2008 decision, District of Columbia v. Heller, also illustrated a second point: Justice Scalia in his later years was willing to bend a little to attract votes from his colleagues. In Heller, the price of commanding a majority appeared to be including a passage limiting the practical impact of the decision.

With the retirement of Justice John Paul Stevens in 2010, Justice Scalia became the longest serving member of the current court. By then, Justice Scalia was routinely writing for the majority in the major cases, including ones on the First Amendment, class actions and arbitration.

He was an exceptional stylist who labored over his opinions and took pleasure in finding precisely the right word or phrase. In dissent, he took no prisoners. The author of a majority opinion could be confident that a Scalia dissent would not overlook any shortcomings.

Justice Scalia wrote for a broader audience than most of his colleagues. His opinions were read by lawyers and civilians for pleasure and instruction.

The tenure of the conservative justice spans almost three decades, and includes a legacy of sharply written opinions.

At oral argument, Justice Scalia took professorial delight in sparring with the advocates before him. He seemed to play to the crowd in the courtroom, which rewarded his jokes with generous laughter.

Justice Scalia’s sometimes withering questioning helped transform what had been a sleepy bench when he arrived into one that Chief Justice Roberts has said has become too active, with the justices interrupting the lawyers and each other.

Some of Justice Scalia’s recent comments from the bench were raw and provocative. In an affirmative action case in December, he said that some minority students may be better off at “a less advanced school, a slower-track school where they do well.”

“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,” he said, describing — some said distorting — an argument in a supporting brief about the harm that can be caused to students with inferior academic credentials by admitting them to colleges where they do not thrive.

Justice Scalia was a man of varied tastes, with a fondness for poker, opera and hunting. His friends called him Nino, and they said he enjoyed nothing more than a good joke at his own expense.

Read more at http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html?_r=0