The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done. I sometimes think that is an appropriate analogy to this Court’s constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. County of Riverside v. McLaughlin, 500 U.S. 44, 59-60 (1991).

Today’s extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.
Minnick v. Mississippi, 498 U.S. 146, 166 (1990).

[N]o government official is “tempted” to place restraints on his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction–towards systematically eliminating checks upon its own power; and it succumbs. Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992).

At a recent Federalist Society event, Justice Scalia was asked which one of his dissents was his favorite. Justice Scalia responded with a quote from Morrison v. Olson. Morrison was the case in which the Court ruled that the Ethics in Government Act did not violate the separation of power doctrine. The Ethics in Government Act empowered the Attorney General to appoint independent counsel to investigate and prosecute government officials. The lone dissenter, Justice Scalia, penned his favorite lines stating,

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. Morrison v. Olson, 487 U.S. 654, 699 (1988).

For more of Justice Scalia’s greatest dissents, check out Kevin A. Ring’s book, Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice.

A recent SMSB post also featured t-shirts with some of Scalia’s more memorable quotes on them.

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In the majority opinion written by Justice Scalia, the Court held that the individual right to possess a firearm is unrelated to service in a militia, and instead, was a right to bear arms for “traditionally lawful purposes, such as self-defense within the home.” In reaching its decision, the Court examined the language used in the Second Amendment, which provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The majority noted that the operative clause used in the Second Amendment was the “right of the people to keep and bear [a]rms.” The Court determined the phrase “right of the people” referred to an individual right rather than a collective right. In dissecting the phrase “keep and bear arms,” the Court found “arms” traditionally referred to “weapons that were not specifically designed for military use and were not employed in a military capacity.” The majority also determined that the most natural meaning of the phrase “keep arms” was “have weapons.” The Court went on to note that every time the phrase “keep arms” was used in the founding era, the phrase referred to an individual right unconnected with militia service. Having addressed the operative clause, the Court went on to address the prefatory clause “[a] well regulated [m]ilitia being necessary to the security of a free [s]tate…” The majority found that the phrase “well-regulated militia” referred to every man who was physically capable of bearing arms. The majority also pointed out that “a militia” was distinguishable from the phrase “organized militia,” and that the phrase “well-regulated” meant only “the imposition of proper discipline and training.” The majority went on to note that the “security of a free state” referred to the “security of the polity” rather than the security of each of the several states. Having addressed each phrase in the pertinent portion of the Second Amendment, the majority concluded that the Second Amendment created an individual right to keep and bear arms.

Majority: Scalia, Roberts, Kennedy, Thomas, Alito

Dissent: Stevens, Souter, Ginsburg, Breyer

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Majority: Kennedy, Stevens, Breyer, Ginsburg, and Souter

Dissent: Roberts, Scalia, Thomas, Alito

Full-length opinion.

Sources: Reuters, SCOTUSblog

More information: Oyez, SCOTUSwiki: amicus briefs

Boumediene: a lesson in drafting dissents.

Oral Arguments

In the 6-3 decision, the Court held the burdens associated with the voter identification requirement did not amount to a constitutional violation. Justice Stevens writing for the majority noted, “[o]n the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes excessively burdensome requirements on any class of voters.”

Writing for the dissent, Justice Souter compared the requirement to the poll tax overturned in 1966. “If this court’s decision in Harper v. Virginia Board of Elections stands for anything, it is that being poor has nothing to do with being qualified to vote. . . The calculation revealed in the Indiana statute crosses the line when it targets the poor and the weak.”

The majority led by Stevens rejected this argument, commenting, “[t]he inconvenience of making a trip to the Bureau of Motor Vehicles, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.”

Held: The voter photo identification requirement did not violate the Constitution.

Plurality Opinion: Stevens, Roberts, Kennedy. Concurring: Scalia, Thomas, and Alito.

Dissent: Breyer, Souter, Ginsburg

In his first-ever major television interview, Scalia provided insight into his position as an originalist, someone who believes that the Constitution means what the drafters originally intended for it to mean. He does not believe in a “living Constitution” that evolves with the times and needs of the citizens. Instead, he believes in an “enduring Constitution” and that change should take place through the legislature, not “activist judges” who try to find rights in the Constitution that simply can’t be found in the Constitution. The only other originalist on the Court is Clarence Thomas.

His ideological position has forced him to make decisions that contradict his own socially-conservative beliefs. For example, in Texas v. Johnson, Scalia joined the majority ruling that flag-burning was protected by the First Amendment. Scalia commented, “If it were up to me, I would throw that bearded, sandal-wearing, flag-burner in jail.”

Commenting on torture, another hot-button issue, Scalia commented that defining torture would be a challenge. He said that he, like most everyone else, was against torture, but not “everything that is hateful and odious is covered by some provision of the Constitution.”

On being a close friend of his liberal benchmate Ginsburg despite their opposing views, Scalia commented, “I attack ideas, I don’t attack people, and some very good people have some very bad ideas. And if you can’t separate the two, you got to get another day job. You don’t want to be a judge, at least not a judge on a multi-member panel.”

Scalia’s new book, Making Your Case, the Art of Persuading Judges, will address how lawyers should address the Court. His co-author is Bryan A. Garner, the editor of Black’s Law Dictionary and author of The Redbook: A Manual on Legal Style.

Update: Bryan A. Garner speaks out about the book on the West Blog. Tune in. (mp3 podcast)

[youtube=http://www.youtube.com/watch?v=RjaB3cxH-XE&rel=0]

As Justice Stevens pointed out, the issue before the Court was not whether the death penalty itself was unconstitutional, rather only whether the sodium thiopental injection used by Kentucky was unconstitutional or not.

Held: The lethal injection method used by Kentucky did not violate the Constitution.

Plurality Opinion: Roberts, joined by Alito, and Kennedy. Joining in the result: Stevens, Scalia, Thomas, and Breyer

Dissent: Ginsberg and Souter.

More information about the case can be found here.