[Congressional Record Volume 162, Number 39 (Thursday, March 10, 2016)]
[Senate]
[Pages S1428-S1430]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REMEMBERING JUSTICE ANTONIN SCALIA
Mr. SESSIONS. Mr. President, the Nation has lost one of the greatest
Justices ever to sit on the Supreme Court, Antonin Scalia. My
condolences and prayers go out to his wife of 55 years, Maureen, his 9
children, and 36 grandchildren.
My thought is that Justice Scalia's greatness was founded on the
power of his ideas. His defense of those founding principles of America
at the highest intellectual level is unprecedented, to my knowledge, in
the United States. Over his career, he moved the legal world. As a
young lawyer out of law school, I remember what the trends were and how
Justice Scalia relentlessly, intellectually, aggressively, and soundly
drove the message that many of the ideas that are out there today are
inconsistent with the rule of law and the American tradition.
The trend was relentlessly toward activism. Judges were praised if
they advanced the law--not when they followed the law, or served under
the law,
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or the Constitution, but if they advanced it. By advancing it, what
that really means is you change it. If you advance it, it means the
legislature hadn't passed something that you would like, or the
Constitution doesn't advance an idea that you like, then you figure out
a way to reinterpret the meaning of the words so it says what you would
like it to say and what you wish the legislature had passed.
One of the bogus ideas at that time--you don't hear much about it
anymore, but it was current, and it was mainstream then--was that the
ink-stained parchment, well over 200 years old and right over in the
Archives Building, was alive. Our Constitution, they said, was a living
document.
Well, how ridiculous is that? The judges said that the Constitution
gave them the power to update it, advance it, and make it say what they
wanted it to say. They even contended that it was the duty of the
judge, not just the privilege of the judge, to advance the words of the
Constitution. Justice Scalia saw this as a direct threat, and he
understood at the most fundamental level who was threatened by it, and
that was ``we the people.''
You know how the Constitution begins with ``We the People of the
United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence,
promote the general Welfare . . . do ordain and establish''? Well,
friends and colleagues, we establish this Constitution, the one we
have, not the one some judge would like it to be or some politician
would like it to be but the one we have.
He boldly criticized the idea that a mere five judges--it just takes
five out of nine--with lifetime appointments who are totally
unaccountable to the American people. We are prohibited from even
reducing their pay, which I support because we want an independent
judiciary.
Judges need to know they are given independence and a lifetime
appointment because we trust them to serve under the Constitution and
not above it. They serve under the laws duly passed by the elected
representatives of the people of the United States, not above those
laws. They were not given the power to set policies that they would
like to set no matter how strongly they feel about it. That is not what
they have been given to do. He boldly criticized those ideas and those
individuals and didn't mind saying it in plain words: You are setting
policy, you are not following the law.
I would say that Professor Van Aylstyne--while at William & Mary or
Duke--had a great quote about this. He said: If you really honor the
Constitution, if you really respect the Constitution, you will
reinforce it as it is written whether you like it or not.
If judges today can twist the Constitution to make it say something
it was not intended to mean, how might a new Court--five judges in a
new age a decade or two from now--reinterpret the words to advance an
agenda during that time? Isn't that a blow to the very concept of the
democratic Republic we have? I think so.
I will tell you that this has been a long and tough intellectual
battle. You don't hear many people say that paper document over in the
Archives is a living thing. Of course it is not a living thing. It is a
contract. The American people have a contract with their government.
They gave it certain powers and reserved certain powers for themselves.
They reserved certain powers for their States, and the Federal
Government is a government with limited power. This is absolutely,
undeniably fundamental, and people don't fully understand it today.
I remember when I was a U.S. attorney back in Alabama and an
individual brought me a high school textbook. He said: I want you to
see this.
The book said: How do you amend the Constitution? It talked about
several different ways to amend the Constitution, such as Congress and
the Constitutional Convention, but it also said by judicial decision.
He said: Mr. U.S. Attorney, I thought the judges were bound by the
Constitution. They don't get to change the Constitution.
Well, of course that is correct. But, in effect, we have had many
instances when judges, through their interpretation, have in effect
amended the Constitution. It is an absolute legal heresy, and they
should not do that. It weakens the power of the democracy.
One of the things that I think is very unfortunate is that judges
have created an incredible amount of law that is contrary to common
sense in the area of religion in the public life of America. Many of
these cases are very confusing. But Justice Scalia, in a series of
cases where he wrote the majority opinion, or wrote the dissent, or
wrote concurring opinions, applied the principles of the Constitution
as they were intended to lay out a lawful and commonsense framework for
faith in the public square. I think that is a significant achievement.
When Chief Justice Roberts came before our committee for
confirmation, I remember telling him: Sir, I would like you to try to
clear up and bring some common sense to the expression of faith. You
have a right to free speech in America, you have a right to the free
exercise of religion under the Constitution, so how has it gotten
around that you can be protected more in filthy speech than you can be
protected in religious speech?
So as I said, Justice Scalia issued a series of opinions that were
important on this subject. For example, in 1992, the Supreme Court
decided Lee v. Weisman. This case involved a challenge to a Rhode
Island public school policy that permitted a member of the clergy to
deliver prayers at middle school graduation ceremonies. In this
instance, a rabbi had delivered a prayer at one such ceremony, and one
of the families in attendance that objected brought suit, alleging that
the school's policy permitting prayer at graduation was a violation of
the First Amendment's Establishment Clause. By a vote of 5-to-4, the
Supreme Court concluded that the school's policy violated the
Establishment Clause. Justice Scalia dissented. He wrote:
In holding that the Establishment Clause prohibits
invocations and benedictions at public school graduation
ceremonies, the Court--with nary a mention that it is doing
so--lays waste a tradition that is as old as public school
graduation ceremonies themselves, and that is a component of
an even more longstanding American tradition of nonsectarian
prayer to God at public celebrations generally.
Two years later, the Supreme Court decided Board of Education of
Kiryas Joel Village School District v. Grumet. This case involved a
challenge to a New York statue that tracked village boundaries to
create a public school district for practitioners of a strict form of
Judaism known as Satmar Hasidim. By a vote of 6-to-3, the Court
concluded that the government had drawn political boundaries on the
basis of religious faith in violation of the First Amendment's
Establishment Clause. Justice Scalia dissented. He wrote:
the Founding Fathers would be astonished to find that the
Establishment Clause--which they designed to insure that no
one powerful sect or combination of sects could use political
or governmental power to punish dissenters, has been employed
to prohibit characteristically and admirably American
accommodation of the religious practices--or more precisely,
cultural peculiarities--of a tiny minority sect. . . . Once
this Court has abandoned text and history as guides, nothing
prevents it from calling religious toleration the
establishment of religion.
Ten years later, in 2004, the Supreme Court decided Locke v. Davey.
In this case, a student challenged a Washington State statute which
created a scholarship for students enrolled ``at least half time in an
eligible postsecondary institution in the state of Washington,'' but
excluded from eligibility for this scholarship students seeking degrees
in devotional theology. A student sued to enjoin Washington from
refusing to award him a scholarship. By a vote of 7-to-2, the Supreme
Court upheld the statute. Justice Scalia dissented. He wrote that:
When the State makes a public benefit generally available,
that benefit becomes part of the baseline against which
burdens on religion are measured; and when the State
withholds that benefit from some individuals solely on the
basis of religion, it violates the Free Exercise Clause no
less than if it had imposed a special tax. That is precisely
what the State of Washington has done here. It has created a
generally available public benefit, whose receipt is
conditioned only on academic performance, income, and
attendance at an accredited school. It has then carved out a
solitary course of study for exclusion: theology.
The next year, the Supreme Court decided McCreary County v. ACLU of
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Kentucky. This case involved a challenge to the placement of the Ten
Commandments on the walls inside two Kentucky courthouses. By a vote of
5-to-4, the Supreme Court held that the placement of the Ten
Commandments inside of courthouses was a violation of the First
Amendment's Establishment Clause. Justice Scalia dissented. He wrote
that:
Historical practices demonstrate that there is a distance
between the acknowledgment of a single Creator and the
establishment of a religion. The former is, as Marsh v.
Chambers put it, ``a tolerable acknowledgment of beliefs
widely held among the people of this country.'' The three
most popular religions in the United States, Christianity,
Judaism, and Islam--which combined account for 97.7% of all
believers--are monotheistic. All of them, moreover (Islam
included), believe that the Ten Commandments were given by
God to Moses, and are divine prescriptions for a virtuous
life. Publicly honoring the Ten Commandments is thus
indistinguishable, insofar as discriminating against other
religions is concerned, from publicly honoring God. Both
practices are recognized across such a broad and diverse
range of the population--from Christians to Muslims--that
they cannot be reasonably understood as a government
endorsement of a particular religious viewpoint.
More recently in 2014, Justice Scalia dissented from a denial of
certiorari in the case of Elmbrook School District v. Doe. In this
case, the entire seventh circuit, over three dissents, held that a
suburban Milwaukee public high school district violated the
Establishment Clause of the First Amendment by holding its graduation
in a nondenominational church. Justice Scalia wrote that:
Some there are--many, perhaps--who are offended by public
displays of religion. Religion, they believe, is a personal
matter; if it must be given external manifestation, that
should not occur in public places where others may be
offended. I can understand that attitude: It parallels my own
toward the playing in public of rock music or Stravinsky. And
I too am especially annoyed when the intrusion upon my inner
peace occurs while I am part of a captive audience, as on a
municipal bus or in the waiting room of a public agency.
In this case, at the request of the student bodies of the
two relevant schools, the Elmbrook School District decided to
hold its high-school graduation ceremonies at Elmbrook
Church, a nondenominational Christian house of worship. The
students of the first school to move its ceremonies preferred
that site to what had been the usual venue, the school's
gymnasium, which was cramped, hot, and uncomfortable. The
church offered more space, air conditioning, and cushioned
seating. No one disputes that the church was chosen only
because of these amenities.
In this case, it is beyond dispute that no religious
exercise whatever occurred. At most, respondents complain
that they took offense at being in a religious place. It
bears emphasis that the original understanding of the kind of
coercion that the Establishment Clause condemns was far
narrower than the sort of peer-pressure coercion that this
Court has recently held unconstitutional.
Although many of his dissents were memorable, not all of Justice
Scalia's notable opinions on religion in public life were issued in
dissent. In 1995, Justice Scalia wrote the opinion for the Court in
Capitol Square Review and Advisory Board v. Pinette, where the Court
rejected an Establishment Clause challenge to the Christmas season
display of an unattended Latin cross in a plaza next to the Ohio State
Capitol. Writing for the Court, Justice Scalia said:
Respondents' religious display in Capitol Square was
private expression. Our precedent establishes that private
religious speech, far from being a First Amendment orphan, is
as fully protected under the Free Speech Clause as secular
private expression. Indeed, in Anglo-American history, at
least, government suppression of speech has so commonly been
directed precisely at religious speech that a free-speech
clause without religion would be Hamlet without the prince.
And just last term, Justice Scalia wrote the opinion for the Court in
EEOC v. Abercrombie & Fitch Stores, a case about accommodation on the
basis of religion in the employment environment. In this case, a Muslim
individual who wore a head scarf as part of her religious observation
applied for a job at a clothing retailer, but was not hired due to the
company's policy, which prohibited employees from wearing ``caps.'' In
reversing the court of appeals in favor of the applicant, Justice
Scalia wrote that:
Congress defined ``religion'' for Title VII purposes as
``including all aspects of religious observance and practice,
as well as belief.'' Thus, religious practice is one of the
protected characteristics that cannot be accorded disparate
treatment and must be accommodated.
As we see, these opinions by Justice Scalia involve parties of varied
faiths--Christians, Jews, and Muslims. Regardless of the identity of
the party, Justice Scalia's opinions on religion in public life
consistently evidence a deep respect for the unique history of
religious pluralism in this country and a heartfelt appreciation for
its positive impact across the landscape of the nation. While some may
say his opinions are not consistent, I disagree. Religion in American
life is an important and complex subject. Judges must think carefully
but not abandon common sense as so many opinions have. Justice Scalia
saw limits on free exercise of religion when it came to the contention,
for example, that one's religion required the use of drugs that a State
had declared illegal.
So this is an important area that needs to be cleared up so that we
can bring some reality to the question of the expression of religious
conviction in public life. Because the Constitution says we shall not
establish a religion--Congress shall not establish a religion. It
doesn't say States couldn't establish a religion; it says Congress
can't establish a religion. It also says ``nor shall Congress prohibit
the free exercise thereof.'' So you can't prohibit the free exercise of
religion.
I think we have forgotten the free exercise clause and over-
interpreted the establishment of religion. Some States at the time had
established religions. Most of the countries in Europe had a religion
that they put in law for their country, and we said: No, we are not
going to establish any religion here. You have the right to exercise
your religious faith as you choose.
Madison and Jefferson particularly believed it was absolutely
unacceptable for this government to tell people how to relate to that
person they considered to be their creator. That was a personal
relationship that ought to be respected and the government ought to
have no role in it.
Like Madison and Jefferson, Justice Scalia, too, believed in American
exceptionalism. Indeed, he was truly exceptional. Although he will be
impossible to replace, his seat on the Supreme Court will eventually be
filled by the next President. After that nominee is confirmed, his or
her decisions will likely impact our Nation for the next 30 years and
far beyond. Next year, when we debate this eventual nominee's
qualifications to assume Justice Scalia's seat, we need look no further
than his own words for wisdom to guide us as we consider our decision.
In no uncertain terms, Justice Scalia's McCreary County dissent reminds
us that:
What distinguishes the rule of law from the dictatorship of
a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be grounded
in consistently applied principle. That is what prevents
judges from ruling now this way, now that--thumbs up or
thumbs down--as their personal preferences dictate.
That is the governing principle that Justice Scalia abided by--
unwavering commitment to the rule of law even when reaching the outcome
that the law dictated did not align with his policy preferences. This--
above all things--is the duty of a judge or Justice, and it is a
principle that has fallen by the wayside far too often in recent years.
It is imperative that we keep these words in mind when we consider
appointments not only to the Supreme Court, but all lifetime
appointments to the Federal judiciary.
I thank the Presiding Officer and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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