Nino Scalia: Grit and Elegance


Associate Justice Antonin Gregory Scalia was found dead  at the age of 79 while on a hunting trip in remote West Texas on Saturday, February 13th, 2016. Much has been made about the implications of his passing on the future state of our High Court, which will be discussed in a later article. But first, I’d like to take a moment to bring my readers to better understand the Associate Justice as his admirers, dissenters, colleagues, and opponents undoubtedly do. Justice Scalia, however you may feel about his politics, was a brilliant man, and he deserves to be remembered as such.

Perhaps those who knew him most intimately would describe Justice Scalia as one of the brightest legal minds of his generation, which is reflected in his twenty-nine year tenure (fifteenth-longest tenure by any justice in history). His countless memorable opinions and dissents overshadowed only by his famous prowess upon which he suffocated solicitors general and appellate advocates before him.
Justice Scalia, who was no stranger to the Georgetown University Law Center, having spoken to the faculty and students on many recent occasions, has maintained that his scathing dissents are “for you guys,” implying that his dissents mean little in terms of the interpretation of the law, but are meant for law students to see the many sides of the issues granted cert.

Perhaps his most famous opinion came in the form of District of Columbia v. Heller, in which a security guard sought an injunction against the District of Columbia for rejecting his application to keep a firearm at his home, arguing that the District had violated his Second Amendment right to the lawful possession of a firearm. In a 5-4 decision, Justice Scalia writing for the majority pled that the Second Amendment may be broken into two sections, the Prefatory Clause and the Operative Clause, which allowed the reading of the word “militia” as to not limit the right just to those in the armed forces. Justice Scalia added that when interpreting the text within its most plain meaning, the Operative Clause is effectually a “guarantee [of] an individual right to possess and carry weapons in case of a confrontation.” District of Columbia v. Heller, 554 US 570 (2008). That determination led to the conclusion that the banning of handguns which are primarily used for personal protection is a violation of the Second Amendment. Id.

Justice Scalia, once considered the most consistently conservative justice on the Court, gained many progressive enemies when he penned his dissent in Lawrence v. Texas. The facts of case are fairly simple, Lawrence was convicted of deviate sexual intercourse by a Texas statute which forbade “sodomy,” which was defined as any non-vaginal sex. Lawrence challenged the constitutionality of the Texas statute, arguing that the law violated the Due Process Clause of the Fourteenth Amendment. Lawrence v. Texas, 549 US 558 (2003). The Supreme Court held in a 6-3 decision that a law which views identical acts differently between heterosexual partners and homosexual partners is, on its face, “an intrusion into the privacy of life of the individual” and “furthers no legitimate state interest.” Id. Scalia begins his dissent with, “[l]iberty finds no refuge in a jurisprudence of doubt,” mocking the famous first line in Justice Souter’s opinion in Planned Parenthood v. Casey, and arguing for the need for “stability and certainty” in the decisions of the Court. Id. He continues his dissent by (correctly) predicting that if this is not a liberty interest in which a state has a valid interest in regulating, it will lead to the overturning of bans on gay marriage. He concludes by reiterating his position  in Bowers v. Hardwick, that if morality is not a sufficient basis for the constitutionality of a law, then what could be?

In 2010, Congress passed the Affordable Care Act (ACA), which, in an effort to increase the population of Americans with health insurance coverage, made tax credits available to those enrollees who signed up through their state-run exchanges. Those states that did not elect to run their own exchanges diverted the responsibility to the federal government. The language of the bill only allowed for the tax credits to be doled out to those who enrolled through their state-run exchanges, but the IRS created a regulation which would provide that benefit to those who enrolled through the federal government exchange. A group of Virginians sued the Department of Health and Human Services arguing that the IRS overstepped its authority in creating this regulation, and a 6-3 majority opinion written by Chief Justice John Roberts affirmed the prior motion to dismiss, holding that the language of the text clearly intended to make the tax credits available to those who enrolled in state-run exchanges and those who enrolled in the federal exchange. King v. Burwell (576 US __ (2015).

Justice Scalia’s dissent to the King v. Burwell opinion was one of his best. He begins his dissent with “[t]he Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd…” The introduction alone has already set the tone for the violent linguistic lashings he is about to bestow upon those with the majority. However, the line that makes this dissent one of his most memorable is his description of the majority’s statutory interpretation as “jiggery-pokery,” which presupposes “the availability of tax credits on both federal and state Exchanges.” He concludes his dissent by stating that fabricating a statutory concoction such as a tax credit based on enrollment through the federal exchange by relying on legislative intent oversteps its bounds of authority.

Though Justice Scalia was never shy about his positions on critical political issues, those law students and practicing attorneys who have taken the time to study his work throughout the last three decades have forged a bond with him. His name became analogous to an unfettering stalwart who often blasted his fellow justices and did so with a gritty elegance and sophisticated robustness. His writings forged a bond between master and apprentice for three generations of legal minds. He did it for us because he cared that we be thorough and precise in the practice of law. We knew him as Nino. We knew him as Justice Nino Scalia.


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