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R.I.P. Antonin Scalia

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By:Mark Gamin | February 15, 2016

The case called Planned Parenthood v. Casey was decided by the U.S. Supreme Court in 1992. At the time there was some thought that it might be the vehicle for overturning Roe v. Wade, the 1973 case that made abortion a constitutional right. But Casey only made things worse: it reaffirmed Roe, and added an "undue burden" test to the jurisprudential farrago of abortion law.

The main Casey dissent, written by Justice Antonin Scalia, is surely the most powerful dissent in the history of the Court. Its tone is one of controlled fury, disappointment, and shame—of anguish at the limitlessness of human, and judges', folly.  (All of this combined, devastatingly, with stinging wit.) A dozen pages long, it is a primer on constitutional law and the proper role of the Court, one he saw, rightly, as modest, limited, circumscribed.

Casey, Justice Scalia said, and Roe before it, were not based on legal reasoning, but on "a collection of adjectives that simply decorate a value judgment and conceal a political choice." This sort of choice is properly left to the people, he said, whose value judgments "are quite as good as those taught in any law school—maybe better."    

Last August he presented a seminar in Vail, a two-day course for lawyers on the separation of powers that is our Constitution's genius. Waffling, I thought about the cost in money and in time, and about the very thin air that makes breathing, for the first twenty-four hours, painful up there. And then, thank goodness, I sent in my registration. What a fortunate decision that turned out to be, because he was marvelous—a gregarious, funny, brilliant wonder—and because I won't have another chance. He died yesterday.      

He was a master prose stylist, and he called a spade a spade. Certainly he loved words (and the Word) and he loved the process of legal reasoning. Perhaps that is why the decision-making in Casey, and in a long slew of cases since then, caused him such evident distress. It is a kind of adjudication that we have gotten used to in various contexts, not just abortion—each involving "massive disruption of the current social order," as he said. It is adjudication that eschews such things as citation to case law (which judges are supposed to rely on) in preference to high-flying, but cheap, and ultimately meaningless, rhetoric.

In Vail he told the story of his first major disappointment on the Court ("there have been many more since," he muttered, as a throwaway line, to general laughter). He went in to William Rehnquist's chambers, a justice for whom he had high regard, to discuss the basis for a forthcoming decision—only to have Rehnquist say "oh, don't worry about that, the legal reasoning doesn't matter."  

"Doesn't matter?", he said to the audience, an incredulous, wide-eyed look on his face.  "Doesn't matter? No—to me, it's all that matters."

He will be remembered, rightly so, as one of the half-dozen greatest justices in American history. May he rest in peace.    

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