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Thursday, September 28, 2006 


Two days ago, Justice Antonin Scalia celebrated 20 years of being on the Supreme Court (he was officially sworn in on 9/26/86). To commemorate this glorious occasion, Simon Dodd has posted a list Scalia's Greatest Hits. He limited himself to five, which had to be tough. Scalia has a very deep bench of quotable and memorable opinions. How does one pick a favorite, or even a few top choices? Well, I'll give it a shot too.

Looking at Scalia the humorist, my favorite opinion is his dissent in PGA Tour, Inc. v Martin. This was the case that dealt with handicapped golfer Casey Martin and his desire to use a golf cart. This was against the rules of the PGA, which required that golfers walked the course. This case made it all the way to the Supreme Court. Here's what Scalia had to say...
[W]e Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," U. S. Const., Art. I, ยง8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?
Quite a groundbreaking case, huh?

How about Scalia the creative writer? I have to go with his concurrence in Lamb's Chapel v Center Moriches Union Free School District. Here, Scalia takes on the Lemon test and the damage it has done to the Court's Establishment Clause jurisprudence...
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.
Just beautiful imagery.

My all time favorite Scalia opinion is on Simon's list: the solo dissent in Morrison v Olson. Here's how Simon introduces it...
Described - without the slightest risk of overstatement - as "the best opinion of the modern era" by Ted Olson, Justice Scalia's solo dissent in Morrison is both a magisterial display of the art of dissent and a masterful exposition of conservative legal thought.
I was at the event where Ted Olson said that. I have to agree. Scalia brilliantly railed against the independent counsel law as being unconstitutional. He laid the groundwork for the Unitary Executive Theory. You might remember that from the Alito confirmation hearings as the term that everyone used but didn't understand. Read it and bask in its glory.

I'm looking forward to ten more years of Justice Scalia on the Court. Hopefully, we can get more Scalia majority opinions than Scalia dissents.

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