[Congressional Record (Bound Edition), Volume 162 (2016), Part 3]
[Senate]
[Pages 2918-2920]
[From the U.S. 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, 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

[[Page 2919]]

     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 
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

[[Page 2920]]

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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