Tuesday, October 04, 2016

A Scalia Sonnet

By Eric Segall

The Court begins to hear oral arguments today, still short one Justice. Few have been been more critical of Justice Scalia's career than I've been, but it is undeniable that the Court is a less interesting, less vital place with his absence. The little ditty below is meant to both honor the man's public service and suggest it is time to move forward, though, as I've been writing, moving forward with the current 4-4, equally divided Court for a long time might be the best thing for the Court and the country.

Six months ago he passed just shy of 80 years old
Justice Scalia’s story will forever be told

He arrived at the Court in 1986
Approved 98-0, he was one of Reagan’s easiest picks

Nino was the first Italian-American to make it to the Supremes
Where he tried to fulfill his Originalist dreams

One year later Judge Bork wouldn’t be quite so lucky
For the Senate his demeanor would prove much too plucky

Kennedy’s appointment would come a little bit later
To Scalia he would be a constitutional traitor

For legal interpretation Nino had many clear rules
Text and history he claimed were the only true tools

The Constitution he yelled was “Dead, Dead, Dead!”
And legislative history should NEVER be read

Against the Independent Prosecutor he voted alone
That he was absolutely right would later be shown

Prayers at graduations and government hearings were just fine
Actual religious coercion was Scalia’s baseline

Voting against affirmative action time and again
Color blindness was the key to his constitutional Zen

The right to privacy and abortion made Scalia irate
To women at VMI, he would have closed the gate

Rigorous standing rules were part of his creed
Personal Injury every plaintiff must plead

To flag burning radicals he was surprisingly nice
He vetoed such laws not once but twice

To criminal defendants he displayed an open mind
He refused to leave them in a constitutional bind

Kennedy’s gay rights opinions made Scalia’s eyes turn red
Don’t forget he would yell, the Constitution is dead!

In the 70’s and 80’s, Scalia and Posner would often agree
That ended when Posner embraced legal reality

They feuded openly about how to correctly read law
They accused each other of enormous chutzpah

Scalia’s ability to write snippets was second to none
Teaching his opinions was nothing but fun

That Nino is missed would give him great pride
His lifetime of service cannot be denied

So we bid him goodbye with a Court stuck at eight
It looks like his replacement may have a long wait


Joe said...

"less vital"

Suggested, as noted, this is not necessarily a bad thing.

My approach would not be a 4-4 Court, but someone else replacing him. A Garland, e.g., would have its own benefits. This could provide a middle three that on various issues are not set in stone, willing to compromise and will disagree.

So, e.g., a Kennedy type would support gay rights and guns while a Breyer type would be less concerned with guns but willing to compromise there too (see his dissent in Heller, which for sake of argument at least UPHELD a right to own a weapon for self-defense).

Kennedy was in place over Bork. Kennedy is imperfect but over time has been shown to be someone both sides find okay in various ways, both sides upset about. This very well might be a good thing. The "solution" was not to pick Bork, not a 4-4 Court. Arguably so.

Shag from Brookline said...

Subtitle: "Two-Liner Verses Versus Justice Scalia"