Bench Memos

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Scalia the Originalist


Here’s my review (from the new issue of the University Bookman) of two recent books of selected Scalia opinions — Kevin Ring’s Scalia Dissents and Paul Weizer’s The Opinions of Justice Antonin Scalia. An excerpt:

Ring properly highlights, whereas Weizer omits, Scalia’s brilliant solo dissent in Morrison v. Olson. In that 1988 case, the Court, in an opinion by Chief Justice Rehnquist, ruled that the independent-counsel statute did not violate the Constitution’s separation of powers. Scalia’s remarkable dissent, at the end of what was only his second year as a Justice, was arguably the first clear signal of what makes Scalia both great and distinctive. The originalist analysis in Scalia’s dissent was made all the more compelling by his striking prose. Two passages may illustrate the point. Separation-of-powers issues, Scalia observed, often “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.” And addressing Rehnquist’s claim that the independent counsel remained subject to “some” presidential control and that “[m]ost important” among these controls was the Attorney General’s “power to remove the counsel for ‘good cause,’” Scalia memorably responded: “This is somewhat like referring to shackles as an effective means of locomotion . . . . [L]imiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control.”


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