[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 1922-1923]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          REMEMBERING JUSTICE
                             ANTONIN SCALIA

  Mr. GRASSLEY. Madam President, I rise today to pay tribute to 
Associate Justice Scalia of the Supreme Court. His recent death is a 
tremendous loss to the Court and the Nation.
  He was a defender of the Constitution. Since his death, a wide range 
of commentators--even many who disagreed with him on judicial 
philosophy--have hailed him as one of the greatest Supreme Court 
Justices in our history. Justice Scalia was a tireless defender of 
constitutional freedom. In so many cases when the Court was divided, he 
sided with litigants who raised claims under the Bill of Rights. This 
was a manifestation of his view that the Constitution should be 
interpreted according to the text and as it was originally understood.
  The Framers believed that the Constitution was adopted to protect 
individual liberty, and, of course, so did Justice Scalia. He was a 
strong believer in free speech and freedom of religion. He upheld many 
claims of constitutional rights by criminal defendants, including 
search and seizure, jury trials, and the right of the accused to 
confront the witnesses against them.
  Justice Scalia's memorable opinions also recognize the importance the 
Framers placed on the Constitution's checks and balances to safeguard 
individual liberty. Their preferred protection of freedom was not 
through litigation and the Court's imperfect after-the-fact redress for 
liberty deprived.
  Justice Scalia zealously protected the prerogatives of each branch of 
government and the division of powers between Federal and State 
authorities so that none would be so strong as to pose a danger to 
freedom.
  We are all saddened by the recent death of Supreme Court Justice 
Antonin Scalia. I extend my sympathies to his family. His death is a 
great loss to the Nation.
  This is true for so many reasons. Justice Scalia changed legal 
discourse in this country. He focused legal argument on text and 
original understanding, rather than a judge's own views of changing 
times. He was a clear thinker. His judicial opinions and other writings 
were insightful, witty, and unmistakably his own.
  Even those who disagreed with him have acknowledged he was one of the 
greatest Justices ever to serve on the Supreme Court.
  Today I would like to address a common misconception about Justice 
Scalia, one that couldn't be further from the truth. Some press stories 
have made the astounding claim that Justice Scalia interpreted 
individual liberties narrowly. This is absolutely untrue.
  It's important to show how many times Justice Scalia was part of a 5-
to-4 majority that upheld or even expanded individual rights.
  If someone other than Justice Scalia had served on the Court, 
individual liberty would have paid the price.
  The first time Justice Scalia played, such a pivotal role for liberty 
was in a Takings clause case under the Fifth Amendment. He ruled that 
when a State imposes a condition on a land use permit, the government 
must show a close connection between the impact of the construction and 
the permit condition.
  Even though I disagreed, he ruled that the First Amendment's Free 
Speech clause prohibits the States or the Federal Government from 
criminalizing burning of the flag.
  Congress cannot, he concluded, claim power under the Commerce clause 
to criminalize an individual's ownership of a firearm in a gun-free 
school zone.
  Justice Scalia was part of a five-member majority that held that 
under the Free Speech clause, a public university cannot refuse to 
allocate a share of student activity funds to religious publications 
when it provides funds to secular publications.
  He found the Tenth Amendment prohibits Congress from commandeering 
State and local officials to enforce Federal laws.
  The Court, in a 5-to-4 ruling including Justice Scalia, concluded 
that it didn't violate the First Amendment's Establishment of Religion 
clause for public school teachers to teach secular subjects in 
parochial schools, as long as there is no excessive entanglement 
between the State and the religious institution.
  Justice Scalia believed that the Sixth Amendment right to a jury 
trial requires certain sentencing factors be charged in the indictment 
and submitted to a jury for it to decide, rather than a judge.
  He concluded with four other Justices that the First Amendment's 
freedom of association allowed the Boy Scouts to exclude from its 
membership individuals who'd affect the ability of the group to 
advocate public or private views.
  Showing that original intent can't be lampooned for failing to take 
technological changes into account, Justice Scalia wrote the Court's 
majority opinion holding that under the Fourth Amendment, police can't 
use thermal imaging technology or other technology not otherwise 
available to the general public for surveillance of a person's house, 
even without physical entry, without a warrant.
  He decided that notwithstanding the Establishment clause, a broad 
class of low-income parents may receive public school vouchers to 
defray the costs of their children's attendance at private schools of 
their choice, including religious schools.
  He voted to strike down as a violation of the Sixth Amendment's right 
to a jury trial Federal and State sentencing guidelines that permit 
judges

[[Page 1923]]

rather than juries to determine the facts permitting a sentence to be 
lengthened beyond what is otherwise permissible.
  Justice Scalia found placing the Ten Commandments on the Texas State 
House grounds doesn't violate the First Amendment's Establishment 
clause when the monument was considered in context, and conveyed a 
historical and social message rather than a religious one.
  He was part of a 5-to-4 Court that concluded the denial of a criminal 
defendant's Sixth Amendment right to his counsel of choice, not only 
denial of counsel generally, automatically requires reversal of his 
conviction.
  He wrote for a 5- to-4 majority that the Second Amendment protects an 
individual's right to possess a firearm for traditionally lawful 
purposes, such as self-defense within the home, in Federal enclaves 
such as Washington, DC. A later 5-to-4 decision applies this individual 
Second Amendment right against State interference as well.
  According to Justice Scalia and four other Justices, a warrantless 
search of an automobile of a person who has been put under arrest is 
permissible under the Fourth Amendment only if there is a continuing 
threat to officer safety, or there is a need to preserve evidence.
  Justice Scalia also voted that it is a violation of the Sixth 
Amendment right of the accused to confront the witnesses against him 
for the prosecution to use a drug test report without the live 
testimony of the particular person who performed the test.
  He was part of a 5-to-4 majority that found that the First Amendment 
requires that corporations, including nonprofit corporations such as 
the Sierra Club and the National Rifle Association, are free to make 
unlimited independent campaign expenditures.
  And under the Free Exercise of Religion clause, according to Justice 
Scalia and four other Justices, a closely held corporation is exempt 
from a law that its owners religiously object to, such as ObamaCare's 
contraception mandate, if there is a less restrictive way to advance 
the law's interests.
  Think about the liberty lost, had Justice Scalia not served our 
Nation.
  A different Justice might have ruled against individual liberty in 
each of these cases. It is a frightening prospect. But in each 
instance, that is what four of Justice Scalia's colleagues would have 
done.
  Of course, these are only the 5-to-4 opinions. There were many others 
where Justice Scalia ruled in favor of constitutional liberty, and more 
than four other Justices joined him.
  And then there were other decisions where Justice Scalia voted to 
accept the claim of individual liberty, but a majority of the Court 
didn't. Some of those cases unquestionably should've come out the other 
way.
  When considering Justice Scalia's contribution to individual liberty, 
it's vital to consider his great insight that the Bill of Rights are 
not the most important part of the Constitution in protecting freedom.
  For him, as for the Framers of the Constitution, it is the structural 
provisions of the Constitution, the checks and balances and the 
separation of powers that are most protective of liberty.
  These were made part of the Constitution not as ends unto themselves, 
or as the basis to bring lawsuits after rights were threatened, but as 
ways to prevent government from encroaching on individual freedom in 
the first place.
  For instance, Justice Scalia protected the vertical separation of 
powers that is federalism. Federalism keeps decisions closer to the 
people but also ensures we have a unified nation.
  And it prevents a Federal government from overstepping its bounds in 
ways that threaten freedom.
  He also maintained the horizontal separation of powers through strong 
support of the checks and balances in the Constitution. He defended the 
power of Congress against Executive encroachment, such as in the recess 
appointments case.
  Justice Scalia protected the judiciary against legislative 
infringement of its powers. He defended the Executive against 
legislative usurpation as well.
  The best example, and the one that most directly shows the connection 
between the separation of powers and individual freedom, was his solo 
dissent to the Court's upholding of the Independent Counsel Act.
  Contrary to the overwhelming views of the public, the media, and 
politicians at the time, Justice Scalia correctly viewed that statute 
not as a wolf in sheep's clothing, but as an actual wolf.
  Dismissively rejected in 1988 by nearly all observers, his dissent 
understood that the creation of a prosecutor for the sole purpose of 
investigating individuals rather than crimes not only was a threat to 
the Executive's power to prosecute, but was destined to produce unfair 
prosecutions.
  It's now viewed as one of the most insightful, well-reasoned, 
farsighted, and greatest dissents in the Court's history. But his 
powerful and true arguments didn't convince a single colleague to join 
him.
  As important as his 5-to-4 rulings were, in so many ways, the 
difference between having Justice Scalia on the Court and not having 
him there, was what that meant for rigorous analysis of the law.
  Justice Scalia's role as a textualist and an originalist was vital to 
his voting so frequently in favor of constitutional liberties. He 
reached conclusions supported by law whether they were popular or not, 
and often whether he agreed with them or not.
  He opposed flag burning. And he didn't want to prevent the police 
from arresting dangerous criminals or make trials even more complicated 
and cumbersome.
  He acted in the highest traditions of the Constitution and our 
judiciary.
  We all owe him a debt of gratitude. And we all should give serious 
thought to the kind of judging that, like his, is necessary to preserve 
our freedoms and our constitutional order.

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