A quotable justice JUSTICE SCALIA’S SHARP PEN BROUGHT CLARITY TO MANY LEGAL FIGHTS. SOME EXAMPLES:
SOUTH L AWN: CHIP SOMODEVILL A/GET T Y IMAGES • WITH FAMILY: BOB DAUGHERT Y/AP • WITH REAGAN: RON EDMONDS/AP
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” —Scalia on the right to bear arms
would leave similar laws in other states in question. “Although Texas might win, the rule of law across the country is probably going to have to wait until there is a new justice,” said Clarke Forsythe, senior counsel for Americans United For Life, which filed an amicus brief on behalf of Texas legislators in the case. More in doubt now is the case from religious nonprofits, like Little Sisters of the Poor, challenging the contraceptive and abortifacient mandate. The nonprofits’ cases have been consolidated into one argument, Zubik v. Burwell, scheduled for March 23. Kennedy’s position on that issue has been unclear. These particular nonprofits lost at the circuit level, so even if the nonprofits do win Kennedy’s vote and a 4-4 tie, the lower rulings against them will stand. The justices decided the parallel for-profit case, Burwell v. Hobby Lobby, on a 5-4 vote. Several other major cases now have an uncertain outcome: in Trinity Lutheran Church v. Pauley the court will examine when state aid can go to religious institutions. Before Scalia’s death, religious freedom advocates thought the church had a good chance of winning that case. Trinity Lutheran lost at the circuit level, so a tie would be a loss for the church. The court had already heard arguments this term in a case from a group of Christian public school teachers challenging their union dues, Friedrichs v. California Teachers Association. In the
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President Reagan announces the nominations of Scalia and William Rehnquist (right) to become a justice and chief justice, respectively, in 1986.
arguments the conservative justices seemed ready to deliver a heavy blow to public sector unions, but without Scalia’s vote the case would likely end in a 4-4 tie. That would affirm a lower court decision against the teachers objecting to the dues. This term the court will also weigh a challenge to President Obama’s executive action on immigration —a tie in that case would be a loss for the Obama administration. But the court’s next steps aren’t clearcut. The justices could decide on some of the more controversial cases to hold rearguments after their numbers return to nine. That decision might occur soon after the original arguments—when justices cast their votes on a case, but before they pen a ruling: If a case is tied 4-4, they might decide to wait on a ruling and reargue. But even seasoned Supreme Court observers aren’t sure how the justices will proceed under these complex circumstances. The Alliance Defending Freedom is involved in the contraceptive mandate cases and the Trinity Lutheran case. When I talked to Alan Sears, the head of ADF, on the night of Scalia’s death, he mourned the loss and then said about the future of his organization’s cases: “Lord have mercy.” A
“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, [the test] stalks our ... jurisprudence once again, frightening the little children and school attorneys.” —Scalia on the Lemon test for church-state separation “I will become a believer in the ingenuousness, though never the propriety, of the Court’s newfound respect for the wisdom of foreign minds when it applies that wisdom in the abortion cases.” —Scalia on the court’s citing of foreign law to justify rulings “My view is that regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it.” —Scalia on the Roe v. Wade decision “This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it re-writes the law to make tax credits available everywhere. We should start calling this law SCOTUScare.” —Scalia on the court’s decision upholding Obamacare
MARCH 5, 2016 WORLD
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