Antonin Scalia left us wisdom in dissent - February 14, 2016

By Glenn Reynolds, USA Today

Even when we disagreed, the Supreme Court justice always had a point.

Justice Antonin Scalia is dead, and his death looks likely to set off partisan fireworks, with Senate Majority Mitch McConnell saying that Scalia’s seat should be filled not by the lame-duck Barack Obama, but by America’s next president, whoever that turns out to be.

It wouldn’t be the first time that happened — in 1968, Republicans filibustered Abe Fortas, LBJ’s pick for Chief Justice to replace Earl Warren, until after the election, allowing Richard M. Nixon to choose Warren’s successor. And the GOP was in the minority, then.  As Josh Blackman notes, only once in the 20th Century was a Supreme Court justice nominated by a president of one party confirmed by a senate of the other party in an election year.

One might think that all this politicking in the wake of a great jurist’s death would be unseemly, but in Scalia’s case, I think it is perhaps fitting. It was a characteristic of his jurisprudence that he favored clear rules for running the government but that he believed the Constitution should leave as many substantive decisions as possible to politics and the elected branches.

That’s a point I stress in teaching two leading cases in my own Constitutional Law classes, where I agree with the majority but nonetheless find Scalia’s dissents worthy of special attention. Lawrence v. Texas, the case in which the Supreme Court — reversing its own relatively recent decision in Bowers v. Hardwick — found that laws against homosexual sex violate the Constitution, Scalia observed:  “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”

Though I would not have stopped where Scalia did — I think that laws regulating sexual behavior that doesn’t harm anyone are beyond the legitimate power of any democratic government — his point about the difference between legislators and judges is an important one. Judges have to give reasons for what they do, and those reasons get built on in future cases. Legislators do not, and can stop wherever it suits them. At least, unless judges get involved.

Even more striking were his words in United States v. Virginia, which overturned single-sex education at the Virginia Military Institute:  “Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.

So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law."

Every year, that passage has seemed more relevant to me, perhaps because we live in an age in which  those “smug assurances” seem especially smug. As we remember Justice Scalia’s time, let us remember that every age’s smug certainties come to an end eventually and that the dissents of Supreme Court Justices often turn out to be prophetic.

Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself, and a member of USA TODAY's Board of Contributors.

Ted Cruz Wins Iowa Caucus - February 1, 2016


Texas Sen. Ted Cruz won the Rebublican Iowa caucuses Monday, according to projections from The Associated Press, NBC News and CNN, beating back attacks from real estate developer Donald Trump and a late surge from Florida Sen. Marco Rubio.

Former Secretary of State Hillary Clinton and Vermont Sen. Bernie Sanders were in a virtual dead heat. WIth a handful of precincts yet to report, Clinton was ahead by less than 1 percentage point.

In the GOP race — with 99 percent of precincts reporting — Cruz leads with 28 percent, Trump has 24 percent and Rubio 23 percent, with those numbers seemingly showing a contest for second place.

“Tonight is a victory for the grassroots,” he told his supporters as his wife, Heidi, stood by his side and the evangelical leaders who helped deliver his victory stood behind him. “Tonight is a victory for couragious conservatives all across this great nation.”

A relatively humble Trump, speaking in West Des Moines, congratulated “Ted” on his victory and then took aim at the Democrats.

“We finished second, and I want to tell you something. I’m honored - I’m just honored” -- “We’re just so happy with the way everything worked out.”

He added, “We will go on to win the Republican nomination and we will easily beat Hillary or Bernie or whoever the hell they throw up there.”

For his part, Rubio basked before the enthusiastic cheers of his supporters and the reality of his better-than-expected finish. The latest poll before the vote showed him with the support of only 15 percent of Iowa’s GOP voters.

“They told me I need to wait my turn, that I need to wait in line, “ Rubio said to supporters with his family standing to his side. “But tonight the people of the great state of Iowa sent a very clear message: After seven years of Barack Obama ,we’re not waiting any more.”

Voting in the Iowa Caucuses got underway after months of debates and personal attacks that helped self-proclaimed anti-establishment candidates reach unlikely perches atop their political parties.

Caucus-goers began gathering in long lines more than an hour before events were to kick off, at 7 pm. local time, and large turnouts flooded caucus sites with lines out many doors delaying the start of voting in some precincts.

Perkins Elementary School in Des Moines has had such a large crowd show up that the caucus was moved outside, KCCI reported. Republicans ran out of ballots all over Des Moines and are printing more, Des Moines Register political reporter Jennifer Jacobs tweeted.

To appreciate the closeness of the vote between Clinton and Sanders, one has to look only at a single caucus site, Roosevelt High School in Des Moines.

In the preliminary voting in that precinct, Sanders had a slight lead over Democrat Hillary Clinton, but after one vote uncommitted voters and those supporting former Maryland Gov. Martin O’Malley decided to join the Clinton camp.

With the Democratic winner not likely to be settled before Tuesday, Clinton addressed her supporters with her husband and former President Bill Clinton behind her with daughter Chelsea.

“There is so much at stake in this election, I don’t need to tell you,” she said crediting young organizers with energy. “I am deeply grateful. It is rare — it is rare — that we have the opportunity we have now to have a real contest of ideas, to think hard about what the Democrtic party looks like . ... I am a progressive who gets things done for people.”

Speaking at a Des Moines hotel near the Des Moines airport, where a plane was ready to take him to New Hampshire, Sanders said: “Nine months ago, we came to this beautiful state. We had no political organzation. We had no money. We had no name recognition and we were taking on the most powerful political organization in the United States of America. ... It looks like we are in a virtual tie.”

The Iowa Democratic Party is asking both the Clinton and Sanders campaigns to re-create the results at the 90 precincts that hadn’t been counted early Tuesday morning. The Sanders campaign said the precincts were not properly staffed.

CNN reported, based on its entrance polling, that the number of first-time caucus participants was up substantially compared to 2012 for Republicans but lower than 2008 for Democrats, when Barak Obama’s late surge won the state, and that evangelicals showed in numbers much larger than pre-voting polls had indicated.

GOP caucus kingmaker Bob Vander Plaats, who has shown the ability to deliver tens of thousands of evangelical voters, supported Cruz as did Congressman Steve King and Iowa talk-radio host Steve Deace, who also hold sway with Iowa’s most conservative voters.

Clinton and Sanders entered the day in a statistical dead heat, according to The Des Moines Register/Bloomberg News Iowa Poll. Trump led Texas Sen. Ted Cruz by 5 points.

Pollsters predicted the finish would be close, regardless of who ends up on top, though no one projected a finish like the 2012 Republican caucus, when it took two weeks to declare Rick Santorum the winner.