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On Scalia
by Jack Lowry. The American Commentator
26 April 2003

By a 6-to-3 vote, with Justices Rehnquist, Thomas, and Scalia dissenting, the Court ruled that execution of the mentally retarded is cruel and unusual punishment.  The decision is flawed and the Justices, like no other time in recent memory, used their own personal views to decide the case.

Chief Justice William Rehnquist addressed the Suffolk Law School in the mid-eighties, remarking that, "Somewhere 'out there', beyond the walls of the courthouse, run currents, and tides of public opinion which lap at the courtroom door."  This remark by the Chief Justice of the Supreme Court underscores the need for separation of public opinion and the judiciary.  It is in fact a duty of the judge to neglect public opinion in making a just and lawful decision.  Often this duty is ignored as personal feelings inspire a judge to intercede instead of oversee.  One sitting Justice who stands by the law as it is written is Antonin Scalia.  In one Supreme Court case, which will be outlined below, Scalia shows his usual brilliance in cutting through the legal malfeasance of the Left.  To begin to appreciate Justice Scalia, we must first look to his past.

Justice Scalia was born on the banks of the Delaware in Trenton, New Jersey. Scalia was educated at the undergraduate level at Georgetown University in Washington, D.C.  Upon graduation, he entered Harvard Law School, where he served as the editor of The Law Review.  Scalia began his career in the field of commercial law.  After a short stint there, he taught law at the University of Virginia in Charlottesville.  Later, he would return to teach at Georgetown University, his alma mater.  His final position as an instructor in law was at the University of Chicago.  In between the times in academia, he served in the Nixon and Ford administrations in various roles.  Upon completion of his work in the Executive branch, he became a scholar at the American Enterprise Institute, a conservative think-tank located in Washington, D.C.  Appointed by President Reagan to the United States Court of Appeals for Washington, D.C. in 1982, Scalia began to gain notoriety for his adherence to judicial restraint and his knack for writing incisive opinions.  President Reagan subsequently nominated him to the High Court in 1986.  Justice Scalia, in his sixteen years on the nation's highest court, has never failed to make an impression.

Judicial restraint is popular among conservatives because in part, it states that judges have no popular mandate to act as policy makers; rather, judges should defer to the elected branches of the Federal and state governments with respect to policy so long as they stay within the confines of their powers as defined by the U.S. Constitution and state constitutions.  This is in direct opposition to the widespread activism advocated by those on the political Left.  In the minds of liberal apologists, good judges make good policy.  Those who favor judicial activism abhor Justice Scalia.  He is often the target of those who label him as an ideologue.  A few attack his decision in Bush v. Gore as evidence that he is an activist when it benefits his political beliefs.  This has no basis in fact, something his detractors care not to discuss.  To many on the Left, it is as if Justice Scalia cast the lone vote in the controversial case.  The ruling, if studied, was in keeping with his judicial philosophy.

Justice Scalia is a proponent of capital punishment.  This leads to the recent decision by the Supreme Court on the execution of the mentally retarded.  In a 6-to-3 vote, with Justices Rehnquist, Thomas, and Scalia dissenting, the Court ruled that execution of the mentally retarded is cruel and unusual punishment.  The decision is flawed and the Justices, like no other time in recent memory, used their own personal views to decide the case.

In his dissent, Scalia noted that the Court throws one last factor into its grab bag of reasons why execution of the retarded is "excessive" in all cases:  "Mentally retarded offenders 'face a special risk of wrongful execution' because they are less able 'to make a persuasive showing of mitigation', 'to give meaningful assistance to their counsel,' and to be effective witnesses.  Ante, at 16.  'Special risk' is pretty flabby language (even flabbier than 'less likely') – and I suppose a similar 'special risk' could be said to exist for just plain stupid people, inarticulate people, even ugly people.  If this unsupported claim has any substance to it (which I doubt), it might support a due process claim in all criminal prosecutions of the mentally retarded; but it is hard to see how it has anything to do with an Eighth Amendment claim that execution of the mentally retarded is cruel and unusual.  We have never before held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative." (Atkins v Virginia, Supreme Court of the United States.)

Here you can see the witty and acerbic side of Justice Scalia, but also the penetrating thought that goes into his opinions.

Many on both sides of the political and social equation, not to mention the average American, accept his philosophy.  Scalia dismisses critics who argue that innocent people perish by embracing the critics' notion.  He asserts that innocent people also go to prison.  This is a product of our society not being perfect.  Scalia stated in earlier comments to a law school:  "I don't think that the system becomes immoral because it cannot be perfect."

The execution of someone who is innocent is regrettable and Justice Scalia acknowledges that, but he asserts that since there is a long period between imposing the sentence and the act of carrying it out, there is sufficient time for review.  The United States has the most vigorous death penalty opponents in the world.  Activists put every decision under the microscope.

Interpretation of the Constitution varies from Justice to Justice.  Antonin Scalia is a textualist:  he does not care what the intent of the framers was, but instead focuses on the words of the document.  This is consistent with his belief that the Constitution is a dead document.  He explains:  "It is clearly not a living, breathing document.  … The Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring.  It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted."

Opposition to this line of thinking is fierce.  Textualist interpretation chokes off the liberal desire for a modern version of the Constitution.

In the future we will see more controversy because anytime a person desires to take the road less traveled, they face obstacles.  Justice Scalia travels the road of justice, wielding the sharpest legal mind on the high court.  How can he avoid controversy?

In a world that seeks activism by our judges, as opposed to the restraint needed, Justice Antonin Scalia will be the enemy of the former and a champion of the latter.  This is a testament to the man and the jurist.

Jack Lowry is the Editor of American Commentator, a conservative daily.  A former Naval Submariner, Mr. Lowry is a freelance writer, author, and poet.  He holds a BS in Computer Science. He is working on his PhD in History.

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