Scalia’s greatest hits on court

Scalia’s greatest hits on court
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Supreme Court Associate Justice Antonin Scalia will be remembered for his sharp mind – and even sharper pen – on the bench.

The leading pioneer of the legal doctrine of Originalism, Scalia leaves behind a legacy of contentious decisions and dissents.


Here are several of his most significant.

District of Columbia v. Heller (2008)

Perhaps his most polarizing decision, Scalia held in the 5-4 majority opinion that bans on registering handguns, carrying unregistered handguns and keeping handguns in functional use infringed upon the Second Amendment.

He said the prefatory clause of the amendment – “A well regulated militia being necessary to the security of a free State” – does not limit to military service the operative clause’s right “to keep and bear arms."

Scalia argued that such a reading would guarantee a state monopoly on force that the amendment’s drafters were trying to prevent in the first place.

The decision was celebrated by gun advocates, but continues to be condemned nationwide by gun-control proponents.

Dissent in Morrison v. Olson (1988)

Scalia was the lone holdout in the 7-1 decision.

He argued in the dissent that the Ethics in Government Act of 1978 violated the separation of powers by depriving the president exclusive executive power to conduct criminal prosecutions.

The majority opinion held that, because the statute only restricted some of the president’s prosecutorial discretion, it did not violate the separation of powers – to which Scalia quipped: “This is somewhat like referring to shackles as an effective means of locomotion.”

Indeed, the opinion was rife with some of Scalia’s most memorable lines, including: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing… But this wolf comes as a wolf.”

Employment Division v. Smith (1990)

Scalia irked conservatives with his 6-3 majority opinion in Employment Division v. Smith, when he argued that two Native Americans could be denied unemployment benefits for ingesting peyote as a part of a religious ritual. 

He held that the First Amendment does not excuse religious believers from complying with valid law, and the nearly infinite potential exceptions on religious grounds “would open the prospect of constitutionality required exemptions from civic obligations of almost every conceivable kind.”

Congress responded to the decision by passing the Religious Freedom Restoration Act (RFRA), which holds that a law substantially burdening the free exercise of religion must (1) achieve a compelling state interest and (2) do so through the least restrictive means possible.

Dissents from Romer v. Evans (1996) – Obergefell v. Hodges (2015)

Perhaps Scalia's most defining role on the Court will be as the foil to Justice Anthony Kennedy in a series of landmark decisions concerning gay rights.

As the LGBT movement took its case to the highest Court, Scalia wrote a number of salient dissents beginning in 1996 with Romer v. Evans and culminating in 2015 with Obergefell v. Hodges.

In Romer, Scalia maintained the Constitution is silent on whether a state can deny protections to those discriminated against on the basis of sexual orientation, arguing that such questions are left to the democratic process.

And in his 2003 dissent in Lawrence v. Texas, in which a 6-3 decision overruled a state law prohibiting sodomy, Scalia predicted the logical conclusion of the opinion would lead to the “judicial imposition of same-sex marriage.”

Scalia saw his prediction come to fruition in Obergefell more than a decade later, in which he said a majority of lawyers on the Court had become “the Ruler of 320 million Americans coast-to-coast.”