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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
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(I agree, and commented here.)

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    :: Saturday, February 13, 2016 ::

    I can't not-update this semi-retired blog today. Perhaps now is the time to tell how I named it.

    It was the story about the bunch of pet fish: this one. The punch-line is "Justice Scalia ate all the others." But what I noticed was that, in all the various re-tellings, when told that the young man had named the biggest fish after him, the Justice's articulated assumption was that the fish-collector had used the name "Nino." In fact he had named that particular fish "Justice Scalia," but that wasn't the Justice's assumption: what he said was, "Oh, you've named him Nino."

    It would be very foolish to conclude from this that the Justice did not care about formality or encouraged strangers to address him casually. (The one time I got a letter answered from him, I followed a protocol book originalistically re how to address a letter to a Supreme Court Justice.) But blogs were relatively new things in those days; I figured he was unlikely to object to a fan-blog, and, taking this assumption one step further, would be unastonished to find that it was named, mutatis mutandis, the way he would have named a large pet fish, if he had named one after himself. (Of course I am solely to blame for the "mania" part.)

    End of an era? Being alive today is like being alive the day John Marshall died. In both cases, an intellectual giant dies while still on the Court, and his influence is/will be lasting. (Insert here your own reflection on the Taney-portrait paragraph at the end of Scalia's Casey dissent.)

    Much is being said, rightly, about Justice Scalia's rehabilitation of text and original intent, as a way of approaching both the Constitution and statutes. Less remarked-upon, I am afraid, will be the way this approach sometimes redounded to the benefit of criminal defendants. Given incorporation of the Bill of Rights through the 14th Amendment, the 6th Amendment's Confrontation Clause protects, in state as well as federal trials, what it says it protects - a right "to be confronted with the witnesses against him [the accused]." Technological substitutes for confrontation do not satisfy this textual, originalist standard.

    Justice Scalia was the Court's leader on this issue, usually joined by those the media call liberals. On this he has been in dissent (Maryland v. Craig - one of his best dissents ever, joined by Justices Brennan, Marshall, and Stevens); for the Court (Crawford v. Washington), and in a concurrence that all but accuses the Court's current "right" wing of wanting to reverse Crawford and go back to a "totality of the circumstances" test to determine whether a textual right was observed (see previous post).

    You see, Justice Scalia was very much a son of the Common Law, even though he did not believe that common-law methodology ("judge-made" - that's how most law schools define "common law" these days) was the right way to read the Constitution, or statutes that were not themselves based on Common Law terms. He loved the Common Law as a system - and not least because it shows a higher respect for defendants' rights than does its major competitor, which is becoming increasingly influential in, e.g., "international criminal law."

    Much is being made of Justice Scalia's tradition-oriented Catholic background. But this did not stop him from noting, in the Confrontation cases, that such exceptions to the confrontation right as can be found in English precedent come mostly from the "Marian Statutes" - enacted during Queen Mary I's attempt to bring Catholicism back to England. Roman Civil Law, replacing Common Law, and with trial by deposition as a standard feature, might have come with it; did, up to a point. Scalia could not have objected to the return of the old faith to England, but he could and did object to the displacement of English Common Law rights. As a jurist and a Common Lawyer, therefore, he saw it as his duty to point to the Marian Statutes (insofar as they impacted the confrontation right) as alien imports - or, as the Declaration puts it (probably referring to Admiralty), as "a jurisdiction foreign to our constitution and unacknowledged by our laws."

    If his successor is just like Justices Kagan and Ginsburg, then his advocacy on this particular issue may go forward. But obviously his death is a step forward - already being crowed over - for those who see the Supreme Court as a gloriously anti-democratic engine in the hand of change agents.

    Yet it falls in a presidential election year. That is, the Court vacancy has opened during an election year (and someone might want to whisper this fact to Ezra Klein, who, during shaving practice, apparently googled "Anthony Kennedy" but not "Robert Bork" or "Douglas Ginsburg." [Update: he has added references to Bork and D. Ginsburg, but seems still unaware that the vacancy arose the previous July, and seems also to think D. Ginsburg was rejected by the Senate.]) At the resignation of Earl Warren in 1968, LBJ wanted to move his crony Abe Fortas, already on the Court, to the Chief slot. No way, said Republican Senators (amid a Democratic Senate) - the next President will make that choice. (Whether it was worth expending political capital for Warren Burger is a question for another day.)

    Strange - critics of "legislating from the bench" (that would include me) presuppose that the questions on which "the bench" should not "legislate" are, by definition, those on which the electorate should legislate (whether federally or at the state/local level). Yet everyone with a political audience - I don't care where you are on the spectrum, just be honest - is a little bit nervous about saying to their folks: "Hey, in addition to all the other issues we've been agitating you about, you're also picking a Supreme Court Justice, so please scream, shout, send money, run around like chickens without heads, send more money, organize your friends, send more money, repost this, hold a teach-in, hold a fundraiser, and send more money...."

    How do you even have a campaign-stump conversation about a Supreme Court slot in a world where what people seem most to want is some combination of a $gazillion minimum wage and expulsion of funny-looking people? Do you try to conduct a seminar on the role of a counter-democratic institution in a society where most decisions (according to its constitutional Framers) were to be made in a democratic or republican fashion? In a world were even one of the major-party hopefuls thinks Supreme Court Justices line up their cases agenda-style, the way congressmen do with bills and presidents with executive orders? When one major news network called Scalia "Chief Justice" this morning, and another referred to the recently-retired "Justice Stevenson"? Your time would be over, and your audience gone, before you'd explained half your terms.

    (Having just busted Bernie, btw, let me now send him a big Ninomaniac hug for his gracious first words on hearing the news. He's old, see, and that has at least two consequences: he adheres to a tried-and-found-wanting ideology, and he adheres to lost-and-much-needed good manners. Many thanks, sir.)

    Still, it's better - as well as much more in line with precedent - for the electorate to get its bite at the apple in this situation.

    But all this is trivial, compared to Justice Scalia's legacy. Several good books (as well as a few drive-bys) have already been published on it; more will come out, as they continue to come out on Marshall, Field, Frankfurter, White (both of them), Thomas, Holmes (quite over-cultically), and Souter (quite inexplicably).

    Justice Scalia loved opera too. I'll close that way, with the ending of Verdi's Simon Boccanegra.

    FIESCO (longtime enemy of Boccanegra, reconciled with him in the end, speaks to the Genoese crowd): Genovesi! In Gabriele Adorno behold your new Doge.
    CROWD: No! Boccanegra!
    FIESCO: He is dead. Pray for peace for him.

    :: David M. Wagner 11:19 PM [+] ::

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