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3 Scalia Opinions Reveal This American Justice

By Ephrat Livni, Esq. | Last updated on

Everyone's got opinions but few express them as eloquently in writing as US Supreme Court Justice Antonin Scalia did, so it's no wonder he opined for a living. Scalia passed away this weekend of natural causes at age 79. But it could never be said that he went gently into that good night.

In fact, some of Scalia's recent words, at a Supreme Court hearing of oral arguments last December, drew gasps of shock from the audience. Few Justices manage to become major cultural figures, but this crotchety scribbler of law did it, American style. He was alternately absurd, bold, outrageous, and great. Let's take a look at a few notable cases.

Last Things First

As noted above, Scalia shocked the nation at oral arguments in the hearing of Fisher v. University of Texas at Austin, a challenge to UT's use of race as a factor in admissions decisions. Fisher was a charged and contentious case that people were listening to closely.

Scalia's historical opposition to race considerations in admissions was well known, but when he said that black students should consider "slower-track" schools where they will do better, he drew widespread criticism. Scalia was actually referring to a notion that others espoused as well, the "mismatch theory," which says that students are harmed by their experiences in unsuitable institutions. But it didn't sound good.

That's not exactly news for Scalia. He was used to striking a sour note.

Gore v. Bush

No stranger to controversy, Scalia was a key figure in Gore v. Bush, the legal ballot challenge that was decided in George W. Bush's favor in 2000 and gave him the presidency. Scalia supposedly told those who questioned his decision to "get over it."

Yet he admitted that the Bush election was marred. He wrote of the decision in Gore v. Bush, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."

Confrontation at Its Best

Scalia was also an unlikely hero of the underdog at times. An originalist, attempting to strictly interpret the Constitution as the nation's founders and the writing's Framers originally intended, he was a champion of rights that are critical in criminal defense.

The Sixth Amendment of the Constitution, known as the Confrontation Clause, provides us with the right to confront the witnesses against us, meaning cross-examination of any testimonial evidence presented to convict. In Crawford v. Washington, Scalia delivered the court's opinion that Crawford's wife's recorded statement to police could not be admitted into evidence when she refused to testify based on the marital priviliege.

Scalia wisely wrote in the opinion, "The Framers ... knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people."

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