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Print allIn new windowmy review of new Scalia bio; wrongful-death lawsuit in TX targets abortion-pill manufacturer; Idaho events; and moreInboxEd Whelan ewhelan@eppc.org via gmail.mcsv.net Mar 15, 2023, 12:26 PM (15 hours ago)to meThe first item below is from the Law & Liberty website today. The other items are blog posts from NRO’s Bench Memos: How Little Nino Became Justice ScaliaBy Edward WhelanWhen Antonin Scalia died suddenly in February 2016, it seemed that his influence on the Supreme Court would also pass away quickly. By filling his seat, President Barack Obama would secure a solid liberal majority on the Court, a majority that would render unimportant the longtime swing vote of Justice Anthony Kennedy. The Scalia vacancy was the first vacancy since 1991 in which a president of one party submitted a Supreme Court nomination to a Senate controlled by the opposing party. By following the path of election-year inaction that then-Senate Judiciary Committee chairman Joe Biden had threatened in that same context in 1992, Republican leader Mitch McConnell secured a temporary reprieve.Four days before Election Day in November 2016, the Supreme Court held its traditional memorial service for Justice Scalia. Much as the occasion celebrated his many accomplishments, it also had a distinctly funereal mood. Nearly everyone—yes, myself included—knew that Hillary Clinton would win a huge and easy victory over Trump and go on to fill Scalia’s seat.As I gathered with some other former Scalia law clerks in the cafeteria before the Court’s memorial service, I met, for the first time, a Notre Dame law professor by the name of Amy Coney Barrett. Trump’s stunning victory on Election Day led, of course, to his appointments of Neil Gorsuch to fill the Scalia vacancy and of Brett Kavanaugh to succeed Kennedy. Barrett’s ascension four years later to the Supreme Court seat long held by Justice Ruth Bader Ginsburg would culminate in President Trump’s extraordinary transformation of the Court. In many ways, Scalia’s influence since his death has been greater than he enjoyed during his lifetime, when so many of his most memorable opinions were dissents. Trump’s pledge to fill Scalia’s seat with a conservative justice was critical to his narrow victory in 2016, and Trump largely remade the Court in Scalia’s image. The Court’s overruling of Roe v. Wade last year—a result that Scalia failed to achieve in 1992 in Planned Parenthood v. Casey and had probably given up hope for—is just the starkest of his posthumous victories and one in what may end up being a long line. “History is written by the winners.” Or so goes the exaggerated saying that Scalia once ruefully recited to me. The genre of history known as biography is more often written about the winners. So it’s fitting and welcome that journalist James Rosen has published Scalia: Rise to Greatness, 1936-1986, the very fine first volume of his projected two-volume biography of the great justice. As Rosen’s subtitle indicates, this volume covers the first fifty years of Scalia’s life, from his birth in Trenton, New Jersey, in 1936 through his appointment to the Supreme Court in 1986. Rosen is covering ground that has been previously stomped on. Supreme Court reporter Joan Biskupic published a biography of Scalia (American Original) in 2009, and college professor Bruce Allen Murphy wrote another (Scalia: A Court of One) in 2014. But as Rosen observes bluntly and accurately, both of those biographies “were unabashed in their contempt for Scalia’s jurisprudence and conduct” (with especially comical consequences for Murphy). So there’s plenty of room for Rosen’s much more admiring survey. What’s more, Rosen draws on nearly a hundred of his own interviews as well as a slew of newly available materials—for example, Ruth Bader Ginsburg’s papers from her time as a DC Circuit judge, which reveal the genuine admiration that Scalia and Ginsburg had for each other’s judicial craftsmanship. Rosen’s research is exhaustive and meticulously documented across 65 pages of endnotes. He has watched every video, listened to every audio recording—he pans Scalia’s only Supreme Court argument—read every transcript he uncovered, and collected lots of anecdotes (including, to be sure, some unflattering ones). In the interests of disclosure, I will note that, in addition to interviewing me, Rosen makes frequent and effective use of the collection of Scalia’s speeches that I co-edited—Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (reviewed for Law & Liberty)—and cites several of my writings. On top of his vocation as husband and father, Scalia was drawn to opportunities to deepen his legal knowledge and to hone his abilities and thus to prepare himself to be the best Supreme Court justice he could be. It’s a challenge, of course, for any biographer to figure out whether and how to trace a person’s ideas to his experiences in life. One illustration captures the stark difference between Biskupic’s and Murphy’s ham-handed treatments and Rosen’s much more deft approach. Biskupic absurdly contends that “Scalia could not separate his constitutional views from the core of his identity, which was decidedly Catholic,” and Murphy similarly claims that Scalia’s originalism enabled him to “accomplish as a judge all that his [Catholic] religion commanded without ever having to acknowledge using his faith in doing so.” Rosen, by contrast, suggests that Scalia’s “reverence for text” derived from a combination of his Catholic upbringing, his father’s mastery of Romance languages, and a favorite high-school teacher’s devotion to Shakespeare. Rosen’s subtitle draws on a conversation that a close friend from his high school years, on his way to the priesthood, had with Scalia when Scalia was in law school. When Scalia revealed his ambition to be on the Supreme Court, his friend asked how he would achieve that, and Scalia is said to have responded: “I will be sent to Washington, and then I will rise.” Much of Rosen’s book reveals how Scalia’s improbable prophecy came true. It was far from clear whether his early steps were leading anywhere. Scalia began his legal career in private practice in Cleveland and left his prestigious law firm on the cusp of a lucrative partnership in order to become a law professor at the University of Virginia. His first position in DC came in 1971, as general counsel to an obscure, and newly established, White House office on telecommunications policy. In a city in which proximity is power, it’s telling that the office, while formally part of the White House, was “blocks away” from it. Yet somehow Scalia made such an impression on his colleagues that one of them, Brian Lamb (later the founder of C-SPAN), told Rosen that “there was no doubt in our mind” that Scalia “would end up on the Supreme Court.”Scalia’s real entrée into the corridors of power came in 1974 when he interviewed with deputy attorney general Laurence Silberman for the influential position of head of the Department of Justice’s Office of Legal Counsel (OLC). “I have never reacted as positively in interviewing anybody,” recounted Silberman, who immediately recommended that Scalia be nominated. That this all happened in the midst of the Watergate drama is reflected in the oddity that one president, Richard Nixon, nominated Scalia and another president, Gerald Ford, after Nixon’s departure from office and Senate confirmation of the nomination, appointed him. Rosen explores how Scalia’s work at OLC shaped and sharpened his understanding of separation of powers and of the threats that Watergate-era congressional overreach posed to executive power. He also traces the formation of Scalia’s friendship with Robert Bork, who was then solicitor general. When Ford’s presidency ended, Scalia returned to academia, this time to the University of Chicago, but remained active in DC through his work for the American Enterprise Institute. When Ronald Reagan became president in 1981, Scalia was “bitterly disappointed” to finish as runner-up for the post of solicitor general. “Larry, I don’t like Nino,” the patrician attorney general William French Smith told Silberman. With Bork’s support, Scalia instead ended up joining Bork on the DC Circuit and then, in a competition between friends that Rosen develops at length, won the nomination to the Court in 1986. In his account of Scalia’s “rise to greatness,” Rosen disputes suggestions by Biskupic, Murphy, and others that Scalia indulged “overweening ambition or crass careerism.” Rosen’s own assessment is that Scalia was “prodigiously gifted by God, disciplined and determined” and “simply understood accurately, and early in life, who he was, what the Court was, and why he belonged there”—and of course, like anyone else who reaches the Supreme Court, “caught more than a few breaks” along the way. Rosen’s assessment comports, I think, with the Catholic understanding of vocation that Scalia possessed. We sometimes speak of vocations as if the only vocations are to the priesthood or religious life. But in the Catholic understanding, every person has a vocation, a calling, both in his personal life and in his work, and it is his duty to discern and pursue that vocation. With a young and growing family, Scalia might have been tempted to stay in private practice in Cleveland and make the big bucks. But on top of his vocation as husband and father, he was drawn to opportunities to deepen his legal knowledge and to hone his abilities and thus to prepare himself to be the best Supreme Court justice he could be. Scalia’s Catholic understanding of his vocation as a jurist emphatically did not mean that it was proper or permissible for him to impose Catholic beliefs and policy preferences. As he explained (in a speech in Scalia Speaks), if he were to impose Catholic beliefs on abortion, “then I would say that the Constitution not only permits the banning of abortion, but requires it.” But the role of federal judges in the American system is not to make policy but instead “to discern accurately and apply honestly the policies adopted by the people’s representatives in the text of statutes—except to the extent that those statutes conflict with the text, the underlying traditions, or valid Supreme Court interpretations of the United States Constitution.”For Rosen’s account of how Scalia carried out his vocation as a Supreme Court justice, and for his broader narrative of the last three decades of Scalia’s life, I eagerly await volume two. Texas Wrongful-Death Lawsuit Targets Manufacturer of Abortion PillEd WhelanMarch 13, 2023Last week, Jonathan Mitchell, architect of the Texas Heartbeat Act, filed a civil wrongful-death lawsuit in Texas state court that threatens massive liability for manufacturers of abortion pills.According to the first sentence of the complaint, “Under the law of Texas, a person who assists a woman in obtaining a self-managed abortion has committed the crime of murder and can be sued for wrongful death.” Mitchell filed the lawsuit on behalf of Marcus A. Silva, the father of an unborn child killed with illegal obtained abortion pills. The complaint charges that the three individuals currently named as defendants—Jackie Noyola, Amy Carpenter, and Aracely Garcia—helped Silva’s wife kill their child.More importantly, Mitchell promises in the complaint that the manufacturer of the abortion pills that Mrs. Silva used “will be added as a defendant once identified in discovery.” The complaint seeks damages “in an amount over $1,000,000” as well as “an injunction that restrains each of the defendants from distributing abortion pills or assisting in illegal self-managed abortions in Texas.” Idaho EventsEd Whelanabout 22 hours agoI’ll be in the Gem State next week.I have two events in Boise on Monday. At lunchtime, I’ll be speaking to the Idaho lawyers chapter of the Federalist Society on the topic “The Triumph of the Conservative Legal Movement?” (yes, question mark in title). Later that afternoon, I’ll discuss Justice Scalia’s legacy at an event sponsored by the University of Idaho law school chapter. See links for further information.I’ve never been to Boise before. By my quick count, Boise will become the 26th state capital I’ve visited.I will then head to Sun Valley, Idaho, where I will either speak on the topic of “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter” or go skiing for a few days. This Day in Liberal Judicial Activism—March 15Ed Whelanabout 5 hours ago1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.” 2016—No plaintiff? So what? Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.”  On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”   This Day in Liberal Judicial Activism—March 14Ed WhelanMarch 14, 20232011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism: It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia. Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas.  2013—In the face of a federal statute stating that “no court shall have any jurisdiction to review … any judgment regarding the granting of relief under” specified provisions of immigration law, a Ninth Circuit panel holds (in Mamigonian v. Biggs) that the jurisdictional bar applies only to determinations made on discretionary grounds.     M. Edward Whelan III
Distinguished Senior Fellow andAntonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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