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Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice

Author: Kevin Ring
Publisher: Regnery Publishing • 2004 • 338 pages
3.88 out of 5 • View Ratings Details • 8 Ratings

Since his appointment in 1986, Justice Antonin Scalia has been the U.S. Supreme Court’s premier conservative, leading intellectual gladiator — and chief wordsmith. More than any justice in recent history, Scalia has given life to Aristotle’s injunction that “it is not enough to know what to say — one must know how to say it.”

Scalia can be pointed. “Today’s opinion has no foundation in American constitutional law, and barely pretends to,” he charged in one case.

He can be pithy. “A priest has as much liberty to proselytize as a patriot,” he wrote about the speech rights of the religious.

And he can be funny. “A freedom of political association that must await the Government’s favorable response to a ‘Mother, may I?’ is not freedom of political association at all.”

Now, in “Scalia Dissents,” Washington attorney Kevin Ring has assembled Scalia’s most scathing, most penetrating, and most accessible opinions to date. Specific rulings and speeches are explained as Ring invites readers into the judicial world where Scalia’s caustic dissents help frame some of the country’s most controversial issues.

“The opinions chosen for this book are not necessarily Scalia’s most important but those that I believe are the most interesting to read,” writes Ring, a former counsel to the U.S. Senate’s Constitution, Federalism, and Property Rights Subcommittee. All the writings collected here show Scalia’s judicial philosophy in practice, reveal his skill at argumentation, demonstrate his ability to foresee future controversies, and showcase his compelling writing style. Before each opinion, Ring provides information to give the reader background on the case: the relevant text of the Constitution, its historical interpretation, Scalia’s general view of the text, the Court’s previous decisions in the area, the relevant facts that led to the case, and the opinions of the Court and other justices.

Sample the Scalia “way with words”

On religious freedom: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to require scrutiny more commonly associated with interior decorators than with the judiciary.”

On legislating from the bench: “Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.”

On affirmative action: “Those who believe that racial preferences can help to ‘even the score’ display, and reinforce, a manner of thinking about race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still.”

On “gender equality”: “The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.”

On the “right” to sodomy: “[The Texas anti-sodomy statute] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to ‘liberty’ under the Due Process Clause, though today’s opinion repeatedly makes that claim. . . . The Fourteenth Amendment expressly allows States to deprive their citizens of ‘liberty,’ so long as ‘due process of law’ is provided. . . .”

On abortion: “The notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”

On the death penalty: “Today’s decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

On decency laws: “Perhaps the dissenters believe that ‘offense to others’ ought to be the only reason for restricting nudity in public places generally. . . . The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd.”

On tax-funded “art”: “Avant-garde artistes such as respondents remain entirely free to epater les bourgeois [shock the middle classes]; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures ‘aimed at the suppression of dangerous ideas.'”

On the Pledge of Allegiance: “In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence. . . . Logically, that ought to be the next target for the Court’s bulldozer.”

On women as a victim group: “It is hard to consider women a ‘discrete and insular minority’ unable to employ the ‘political processes ordinarily to be relied upon’ when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns.”

On judicial arrogance: “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”

On the independent counsel law: “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile.”

On stare decisis (adhering to judicial precedent): “The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the ‘central holding.’ It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version.”

On parental rights: “In my view, a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims ‘all Men . . . are endowed by their Creator.'”

On the “living Constitution”: “I am left to defend the ‘dead’ Constitution.”

“Justice Antonin Scalia is the most principled conservative jurist in my lifetime. This book is the proof. Kevin Ring has done us all a great favor in compiling this volume of extraordinary opinions.” — Tom DeLay, Majority Leader, U.S. House of Representatives

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