Scalia respectfully dissents

Readers have heard much this week about the writing, especially the pungent dissents, of Supreme Court Justice Antonin Scalia, who died Saturday in his 30th term on the court. Below, a few brief excerpts.

THE EDITORS

PGA TOUR, INC. vs. CASEY MARTIN (2001)

The court ruled that the professional golf tour was required under the Americans With Disabilities Act to set aside its rule that players walk the course, allowing golfer Casey Martin to use a cart. Scalia dissented.

If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf — and if one assumes the correctness of all the other wrong turns the Court has made to get to this point — then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," to decide What Is Golf.

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.

PRADO NAVARETTE vs. CALIFORNIA (2014)

The court upheld the constitutionality of a traffic stop on suspicion of drunk driving (which led to a drug arrest) based not on an any observed erratic driving but solely on an anonymous phone tip that Navarette had earlier swerved out of his lane. Scalia dissented.

[T]he Court curiously asserts that, since drunk drivers who see marked squad cars in their rearview mirrors may evade detection simply by driving "more careful[ly]," the "absence of additional suspicious conduct" is "hardly surprising" …

Whether a drunk driver drives drunkenly, the Court seems to think, is up to him. That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant's impairing effects on the body — effects that no mere act of the will can resist …

Consistent with this view, I take it as a fundamental premise of our intoxicated-driving laws that a driver soused enough to swerve once can be expected to swerve again — and soon. If he does not, and if the only evidence of his first episode of irregular driving is a mere inference from an uncorroborated, vague, and nameless tip, then the Fourth Amendment requires that he be left alone.

TROXEL vs. GRANVILLE (2000)

The court overturned a Washington state law that had empowered family law judges, when they deemed it in a child's best interest, to grant visitation rights to grandparents, even if custodial parents disapproved. Scalia dissented.

[W]hile I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right …

Judicial vindication of "parental rights" under a Constitution that does not even mention them requires … ushering in a new regime of judicially prescribed … family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people."

MORRISON vs. OLSON, (1988)

The court upheld the Independent Counsel Act, which empowered federal prosecutors outside the executive branch and beyond a president's control. In the 1990s, Kenneth Starr would investigate President Bill Clinton under the act's auspices. Scalia dissented.

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf. …

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound.

KING vs. BURWELL (2015)

The court upheld the Affordable Care Act (often called "Obamacare") for the second time, ruling that a provision limiting tax credits to state-created insurance exchanges could be provided on federally created exchanges. In an earlier case, the Supreme Court (sometimes designated SCOTUS) had deemed the act's mandate penalty a "tax" and therefore permissible. Scalia dissented.

We should start calling this law SCOTUScare.

Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act … perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed ("penalty" means tax … "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

OBERGEFELL vs. HODGES (2015)

The court ruled that the U.S. Constitution protects same-sex couples' "equal protection" liberty to marry. Scalia dissented.

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.