People From Trenton

"Mere factual innocence is no reason not to carry out a death sentence properly reached."

"He was a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture. His intellect, learning, wit, and memorable writing will be sorely missed."

"Justice Scalia, do you sodomize your wife?"

"Scalia will be remembered chiefly for moving the conversation about statutory interpretation—in the direction of textualism—and constitutional interpretation—toward originalism. I have almost always found myself on the other side of these debates, but I nonetheless appreciate the magnitude of his influence. He redefined both fields."

"He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. […] It was my great good fortune to have known him as working colleague and treasured friend."

"Scalia was one of the most concerned members of the court about criminalizing politics and the line between what's allowed and what's not allowed. I think his voice would have been a very important one in the McDonnell case."

"In January 2002, Supreme Court Associate Justice Antonin Scalia made a major speech so sweeping and extreme in its contempt for democracy, and so willfully oblivious to the Constitution’s grounding in human rather than divine authority, that it might well, in an era when American secularists were less intimidated by the forces of religion, have elicited calls for impeachment."

"Scalia is right to observe that what a person believes happens after death determines his view of it-and therefore, his ethics. It is remarkable that we are the last civilized nation that still puts 'evildoers' to death, and Justice Scalia rightly attributes this to our style of religiosity...Scalia supports the use of capital punishment even in cases where the defendant is acknowledged to be mentally retarded. He also upholds state sodomy laws (in this case, even when they are applied in an exclusive and discriminating way to homosexuals.) Needless to say, Scalia has found legal reasons to insist that the Supreme Court not leaven the religious dogmatism of the states, but he leaves little doubt that he looks to Saint Paul, and perhaps to the barbarous authors of Leviticus for guidance on these matters."

"Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law. I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino’s friendship. I will always remember, and greatly miss, his warmth, charm, and generosity."

"In years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship, and technical brilliance that Justice Scalia brought to the Court. His insistence on demanding standards shaped the work of the Court in its private discussions, its oral arguments, and its written opinions."

"the people's right to have their day in court is being foreclosed. Corporate victories in federal and state elections work hand in hand with this mission by assuring the nomination of more commercially-responsive judges such as Chief Justice Roberts, and Justices Scalia and Alito, with the same being true in many states."

"I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served."

"Richard Epstein's book, Takings: Private Property and the Power of the Eminent Domain, is the bible of the "ownership society" of the cowboy capitalists of the 21st century. It is also the bible of judges like Clarence Thomas and Antonio Scalia who have used Epstein's philosophy of takings to undo the Clean Water Act, the Endangered Species Act, and alter laws based on the public trust doctrine."

"[E]ven now, I'm confident Scalia's anti-gay beliefs will remain as a lasting blotch on his memory. But in a few decades—when a majority of Americans can't remember a time when the Constitution did not guarantee gay people the same fundamental rights as heterosexuals—the sting of this rhetoric will dwindle. Scalia, after all, was writing in dissent; his words had little impact on the country. […] Memories of his regrettable prejudices will recede, and in their place will emerge the image of a titan of constitutional law, a deeply principled, sincerely dedicated man who devoted his life to the court he loved."

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (“penalty” means tax, “further [Medicaid] payments to the State” means only incremental Medicaid payments to the State, “established by the State” means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

"This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.'"

"I define speech as any communicative activity. [Can it be nonverbal?] Yes. [Can it be nonverbal and also not written?] Yes. [Can it encompass physical actions?] Yes. Watt [Community for Creative Non-Violence v. Watt, 703 F.2d 586 (1983)] was a case in which what was at issue was sleeping as communicative activity. What I said was that for purposes of the heightened protections that are accorded, sleeping could not be speech. That is to say, I did not say that one could prohibit sleeping merely for the purpose of eliminating the communicative aspect of sleeping, if there is any . . . [and] I did not say that the Government could seek to prohibit that communication without running afoul of the heightened standards of the first amendment. If they passed a law that allows all other sleeping but only prohibits sleeping where it is intended to communicate, then it would be invalidated. But what I did say was, where you have a general law that just applies to an activity which in itself is normally not communicative, such as sleeping, spitting, whatever you like; clenching your fist, for example; such a law would not be subject to the heightened standards of the first amendment. That is to say, if there is ordinary justification for it, it is fine. It does not have to meet the high need, the no other available alternative requirements of the first amendment. Whereas, when you are dealing with communicative activity, naturally communicative activity—writing, speech, and so forth— any law, even if it is general, across the board, has to meet those higher standards."

"In law school, I never understood [antitrust law]. I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then."

"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."

"Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis."

"How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile."

"Those who believe that racial preferences can help to 'even the score' display, and reinforce, a manner of thinking about race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still."

"Justice White's conclusion is perhaps correct, if one assumes that the task of a court of law is to plumb the intent of the particular Congress that enacted a particular provision. That methodology is not mine nor, I think, the one that courts have traditionally followed. It is our task, as I see it, not to enter the minds of the Members of Congress - who need have nothing in mind in order for their votes to be both lawful and effective - but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times."

"We reject the dissent's contention that our approach, by "largely return[ing] the task of defining the contours of Eighth Amendment protection to political majorities," leaves "‘[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit,'" [...] By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that "those institutions which the Constitution is supposed to limit" include the Court itself. To say, as the dissent says, that "‘it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,'" (quoting Enmund v. Florida) -- and to mean that as the dissent means it, i.e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment" -- to say and mean that, is to replace judges of the law with a committee of philosopher-kings."

"The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical -- a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive. […] Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us -- their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will -- to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. […] It was an arguable question today whether [Section] 188.029 of the Missouri law contravened this Court’s understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. […] Of the four courses we might have chosen today -- to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question -- the last is the least responsible. On the question of the constitutionality of [Section] 188.029, I concur in the judgment of the Court and strongly dissent from the manner in which it has been reached."

"As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in present circumstances) without judicial bypass, but constitutional with bypass […]; four Justices would hold that two-parent notification is constitutional with or without bypass […]; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards […]; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons […]; and three Justices would hold that one-parent notification with bypass is unconstitutional […]. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s – and hence not in the judges – workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so."

"The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution - not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone - and not lawyerly dissection of federal judicial precedents - can produce compromises satisfying a sufficient mass of the electorate that this deeply felt issue will cease distorting the remainder of our democratic process. The Court should end its disruptive intrusion into this field as soon as possible."

"The point at which life becomes 'worthless,' and the point at which the means necessary to preserve it become 'extraordinary' or 'inappropriate,' are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory...[therefore] even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored."

"I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction."

"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."

"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. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not)."

"Perhaps the dissenters believe that 'offense to others' ought to be the only reason for restricting nudity in public places generally. . . . The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd."

"Life is too short to pursue every human act to its most remote consequences; "for want of a nail, a kingdom was lost" is a commentary on fate, not the statement of a major cause of action against a blacksmith."

"I think [that] '[t]he judicial Power of the United States' conferred upon this Court 'and such inferior courts as Congress may establish', must be deemed to be the judicial power as understood by our common-law tradition. That is the power 'to say what the law is', Marbury v. Madison, 1 Cranch 137, 177 (1803), not the power to change it."

"The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'curb the discretion of federal judges' is, of course, rhetoric rather than reality; no government official is 'tempted' to place restraints upon 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."

"In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence. . . . Logically, that ought to be the next target for the Court's bulldozer."

"I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to 'require[e] scrutiny more commonly associated with interior decorators than with the judiciary'. But interior decorating is a rock hard science compared to psychology practiced by amateurs."

"The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version."

"I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity."

"As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."

"'Abusive' (or 'hostile,' which in this context I take to mean the same thing) does not seem to me a very clear standard - and I do not think clarity is at all increased by adding the adverb objectively or by appealing to a reasonable person's notion of what the vague word means."

"Justice Blackmun begins his statement [declaring Blackmun's opposition to capital punishment] by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina. How enviable a quiet death by lethal injection compared with that!"

"I have been willing, in the case of civil statutes, to acknowledge a doctrine of scrivener's error that permits a court to give an unusual (though not unheard of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result."

"The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an establishment of the Empire State. And 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. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion."

"Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual . . . . To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American."

"Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible."

"The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a "'bare ... desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U. S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed.) Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 634, is evil. I vigorously dissent."

"It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a 'more perfect world') can impose its own favored social and economic dispositions nationwide."

"It is hard to consider women a 'discrete and insular minority', unable to employ the 'political processes ordinarily to be relied upon' when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns."

"The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law."