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.
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
2 comments:
"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.
Subtitle: "Two-Liner Verses Versus Justice Scalia"
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