The Death Of Antonin Scalia: An Inestimable Loss For Constitutionalism

Justice Antonin Scalia’s death leaves the Supreme Court without one of its most courageous and colorful conservative legal minds.

First, he was a staunch defender of the separation of powers, which, like the American founders, Justice Scalia saw as a bulwark against government tyranny. It made no difference to Scalia which branch’s powers were being threatened by the encroachment of another branch. He relied upon the clear language of separation in the Constitution. The founders vested legislative power in Congress (Article I), executive power in the president (Article II), and judicial power in the Supreme Court (Article III). That unequivocal proclamation of separation is found in the first sentences of each article and Justice Scalia refused to allow it to be ignored.

Examples of Scalia’s unrelenting defense of the separation of powers are numerous. But, perhaps, the most erudite were his arguments against the Ethics in Government Act, dubbed the “independent counsel act” in the 1988 case of Morrison v. Olson. There, Scalia, the sole dissenter from the majority, maintained that by passing the independent counsel legislation Congress “does deprive the president of substantial control over the prosecutory functions performed by the independent counsel … and it does substantially affect the balance of power.” The dissent is typical of Scalia. Most of the five-part opinion would be required reading in an upper-level political science class. However, the acerbic thrusts that characterize his style inevitably appear. He says that sometimes efforts to claim power from another branch “come before the Court clad, so to speak, in sheep’s clothing … But this wolf comes as a wolf.” In the end, Scalia stood upon what the founders put in the text of the Constitution: “I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and two centuries of history that have shown it to be sound.”

Secondly, Scalia was a defender of classical federalism—the recognition that certain powers were intended by the framers to remain with state governments and not be denied to the states by any branch of the federal government, especially the judiciary.

In Planned Parenthood of Southeastern Pa. v. Casey, Scalia justifiably indicts his fellow justices in the majority (upholding a modified Roe v. Wade) with his usual directness. He reminds them that they have no business in the “abortion umpiring business” because the Constitutional question about “whether [abortion] is a liberty protected by the Constitution of the United States” should be answered simply: “I am sure it is not.” “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” Why is that? Scalia explains that though “profound disagreement existed among our citizens over the issue [prior to Roe] … that disagreement was being worked out at the state level.” Unfortunately, the court in deciding Roe v. Wade (and then in basically affirming Roe in Casey) has the effect of “banishing the issue from the political forum that give all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences.” Scalia summarizes in one telling sentence the arrogance of the court of which he is a part, arrogating power to itself well beyond the intent of the founders: “The Imperial Judiciary lives.”

The third feature of the jurisprudence of Scalia was his opposition to the judiciary minting new rights out of thin air, that is, “rights” not explicitly found in the Constitution. His dissent in Obergefell v. Hodges calls out the majority opinion which upholds same-sex unions. He laments that it is “lacking in even a thin veneer of law.” He maintains that the majority is engaged in a “judicial Putsch” that is a sudden overthrow of the rules which govern this area of law. He goes on to complain that the majority is “entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’s permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since … minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr. … Louis Brandeis … Felix Frankfurter.” Stating his position in favor of respect for the states and against his own court’s “hubris,” he exclaimed: “This is a naked judicial claim to legislative—indeed, super-legislative—power, a claim fundamentally at odds with our system of government.”

His stances on the separation of powers, federalism, and judicially created “rights” were rooted in his opposition to the “flexibility” advocated by “living constitution” jurists. In the no-holds-barred style of the ebullient but brilliant judge, Justice Scalia summed it up for a Federalist Society gathering:  “[T]he argument of flexibility … goes something like this:  The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things.”

Precisely so, your honor! Requiescat in pace.

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Big Brother Vs. The Little Sisters … Obama Administration Takes Nuns To Supreme Court

The Obama administration’s lack of understanding of the spiritual depth and commitment of private religious charities is shocking. The callousness of the federal effort to compel a noble Catholic religious order—the Little Sisters of the Poor—to forsake its faith commitments shows the depth of the intolerance of the behemoth secular state under President Obama.

The story is one of courageousness on the part of the nuns of this religious order. Founded in France in 1839, the Little Sisters of the Poor has spread to many other countries, including the United States, with the charitable goal of giving aid and comfort to the poor. The Sisters take the normal vows of poverty, chastity, and obedience, but also add hospitality, which they extend to some of the “least of those in our midst.”

In March, the nuns will continue their long battle against the federal Department of Health and Human Services (HHS) and its head, Sylvia Burwell, when the Sisters and their lawyers come before the Supreme Court.

The case concerns the long reach of the Affordable Care Act (i.e., Obamacare) and its unyielding interpretation by HHS that threatens to place the Little Sisters of the Poor in a moral dilemma. HHS is requiring the Sisters and other religious institutions such as sectarian colleges, seminaries, and faith-based charities, to provide contraceptives—including abortion-inducing drugs (i.e., abortifacients)—in the health plans they offer to their employees. The Little Sisters and other religious entities are refusing to comply, even though non-compliance will mean huge and potentially destructive fines imposed by the federal government. This is the same moral choice that was imposed on private for-profit corporations in 2014, which resulted in the Hobby Lobby case. There, two firms—Hobby Lobby and Conestoga Wood Specialties—successfully challenged the contraceptive mandate imposed by HHS and the Affordable Care Act by making use of the provisions of the Religious Freedom Restoration Act.

In a calculated retreat, HHS claims that it has provided a “way out” for the Little Sisters. But is this a sleight-of-hand trick telling the nuns that they can avoid the moral issue? HHS and the Obama administration may be used to trying to make moral issues appear inconsequential in order to achieve their secular goal of opening wide the pathway to abortions, but the Little Sisters know complicity in wrongdoing when they see it. Here are the specifics:

HHS now offers to have the Sisters sign a form saying that they have religious objections to providing the contraceptive choices to their employees. This then has the effect of shifting the provision of contraceptives to either the health insurance company or to a third party that administers the health plan. Either way, the contraceptives are provided through the Little Sisters’ plan. The Sisters say that what HHS is proposing is a distinction without a moral difference. As they argue in their brief:  “In short, it [the HHS proposal] is designed to force a religious employer to allow its own plan to be used to facilitate access to the very contraceptive coverage that it finds religiously objectionable.”

The provisions of the Religious Freedom Restoration Act are clear. The complaining party must show that a regulation imposed by the federal government “substantially burdens its free exercise of religion.” The Little Sisters of the Poor face ruinous fines in the millions of dollars if they refuse to comply. That is a substantial burden. The government is then obliged to show that it nevertheless has a “compelling interest” in enforcing the requirement, and it must satisfy the court that it has “no less burdensome way” of accomplishing its regulatory end.

The difficulty the federal government faces here is that it has exempted many others, including churches and their religious auxiliaries, “grandfathered plans,” and small employers, which clearly demonstrates that the requirement is not so compelling that no exemptions can be granted. In addition, HHS could extend the general exemptions it already offers to other religious entities to the Little Sisters, which would be the least restrictive means of meeting the requirement. Under the Hobby Lobby case, the court also suggested that the government itself could offer to assume the costs of the contraceptives sought by exempted employees without implicating the religious employer.

This is a case where Big Brother simply refuses to recognize the deeply held religious views of private charities whose work with the poor and downtrodden is activated by the example of Christ himself. Here is a simple message the Supreme Court should send to Burwell, President Obama, and HHS: Let the Little Sisters continue to serve the poor and vulnerable. Leave them alone.

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Freedom of Speech and Public Employee Unions: Friedrichs v. California Teachers Association

U.S. labor unions have long been experiencing a decline. In 1954, union membership for both public and private sector employees combined peaked at 28.3 percent. Today only around 11 percent of all workers belong to unions. The overall rate of union membership would be much lower were it not for the public sector—teachers, police officers, other municipal workers— where the rate of union membership is considerably higher at nearly 36 percent. This higher rate among the public sector is why the outcome of Friederichs v. California Teachers Association is a major concern for labor leaders.

Rebecca Friederichs is a public school teacher employed by the Savanna School District in Anaheim, California. She was once a member of the teachers union that represents the teachers at Savanna but resigned from the union in 2012. Despite her not being a member, the school district continues to deduct from her pay an amount generally equal to the union dues. This money ends up in the coffers of the California Teachers Association and the National Education Association and its local affiliates. This is made possible because the school district has agreed to an “agency shop” which essentially requires all teachers, as a condition of continuing employment, to pay either union dues or an equivalent amount called an “agency fee.”

Current law concerning these agency fees is based on a case decided nearly 40 years ago—Abood v. Detroit Board of Education (1977). According to Abood, Rebecca Friederichs is required to pay for union expenditures that are used for “collective bargaining, contract administration, and grievance adjustment” but not that portion of union expenditures that finance political/ideological activities of the union such as the support of political candidates. The Supreme Court in Abood went on to say that compelling employees to pay fees to support the union’s political/ideological causes such as lobbying and candidate support, with which they may not agree, is a violation of their First Amendment rights. In order to get back that “ideological/political” portion of the agency fee, Rebecca Friederichs is required to apply each year for a refund of monies that the union had no right to claim in the first place. If she and the other non-member teachers miss the deadline for filing, they get nothing back.

In the lawsuit, Friederichs and other teachers object to the cumbersome process by which they must retrieve the portion of the union’s fee devoted to political causes.

Friederichs and her fellow petitioners raise a second and more fundamental complaint. They argue that even the part of their pay check that is currently claimed by the union for its “collective bargaining services” violates their First Amendment rights. Public employee union leaders fear that if this view is upheld by the Supreme Court, the potential loss of non-member generated fees nationwide will be in the millions of dollars.

Are the First Amendment rights of this handful of California teachers in jeopardy? If so, how? Friederichs says that non-member teachers are being compelled to financially underwrite negotiating positions taken by the union during contract deliberations that are political and ideological in nature and are contrary to their interests and their political views. Friederichs maintains that Abood made a false distinction between negotiations with public school districts, on one hand, and other more obvious political lobbying and candidate support on the other. Her brief argues that both activities are designed to influence government decision-making with which non-members may well have disagreement. Both are political and ideological. The First Amendment principle that persons cannot be compelled to support speech by others with which they disagree, says Friederichs, means that the union is violating the constitutional rights of the non-members when it involuntarily collects agency fees from them that further ideological negotiating positions.

Friederichs and her fellow teachers are correct. Repeatedly, union negotiations with tax-supported public school districts aim at producing public policy outcomes with much the same result as direct political action. For example, when unions bargain for fixed-scale pay steps that increase depending largely on seniority (years of service), they negate a public-pay policy tied to individual teacher merit and effectiveness. When they stake out positions on a host of other topics—classroom size, medical and retirement benefits, transfer, reassignment, termination of teachers—they seek to influence public school districts to adopt those policies.

The Supreme Court should end this compelled support for the public employee union’s policy agendas. If due-paying union members choose to support these political/ideological positions taken by their union across the bargaining table, let them be the ones to pay, not their unwilling non-member colleagues.

Race And University Admissions: ‘Abigail Fisher v. University Of Texas II’

Abigail Fisher applied for admission to the University of Texas at Austin (UT) as part of the entering class of 2008. Little did she know that being rejected for admission under UT’s race-conscious program would bring her before the U.S. Supreme Court, not once, but twice. Fisher v. University of Texas II is scheduled to be heard in the court’s new term. The outcome will shape college and university admissions policies nationwide.

The issue of whether public colleges and universities can use race as an affirmative characteristic in admissions was first addressed by the Supreme Court in Regents of the University of California v. Bakke. There, an applicant to medical school was rejected in favor of students with less meritorious qualifications under a quota-type system that reserved seats for minority students. In a fractured and ambiguous decision, four justices, with Justice Lewis F. Powell making the fifth justice, first nixed that quota-like approach. However, four other justices, with Powell making the fifth once again, recognized that if an educational institution were trying to create a “diverse student body” to enhance students’ educational experiences, then race could be considered a positive “factor” in admission decisions.

In an effort to clarify the admissions muddle left by Bakke, and “after a series of conflicting lower court rulings were issued regarding the use of race to promote a diverse student body,” the court (in 2003) heard and decided two University of Michigan cases—one concerning the College of Literature, Sciences, and the Arts (LSA) and the other concerning the Law School. In the LSA case, the court rejected the use of race in a way that would virtually guarantee admissions, but in the Law School case it approved a complicated, largely inscrutable process of admissions which allowed Michigan to admit a “critical mass” of minority students so the individual minority students would not feel “isolated or as a spokesperson for their race.” What was allowable was still far from clear.

The lack of clarity caused the UT admissions policies to change several times over two decades. UT first used race and then abandoned race when it lost in court. At that point, the Texas legislature passed the so-called “Top 10 percent Law,” which granted in-state students, regardless of race, automatic admission to public universities if they finished in the top 10 percent of their Texas high school class. In its most recent admissions policy shift, UT continued to abide by that race-neutral law but supplemented it by using race in what it called a “holistic review” of applicants.

It was this approach, using race once again, which was challenged by Abigail Fisher. In what became Fisher v. University of Texas I, she lost in the lower federal courts, but upon appeal to the Supreme Court in 2013 the justices said that the Fifth Circuit had erred. It did not give the UT admissions process the proper level of “strict scrutiny” required whenever persons are treated differently because of race. Upon remand and after further review, the Fifth Circuit Court of Appeals once again found the current race-conscious admissions approach constitutionally acceptable. Fisher appealed a second time, and the Supreme Court agreed to hear her appeal once again; this became Fisher v. University of Texas II.

The technical legal question now is whether or not the Fifth Circuit’s “redo” strictly scrutinized UT’s latest race-conscious admissions program. What exactly is “strict scrutiny”? This is a court’s way of saying that since using racial categories may very well subject persons involved to unfair treatment, their use can only be countenanced if the reasons for using such a classification are “compelling.” In previous cases, the court has “deferred” to the university’s goal of admitting a “diverse student body” as a valid and compelling one. Therefore, unfortunately, the court is not likely to revisit that issue, although it should.

However, in addition, a second legal hurdle must be cleared by UT. The specific means used to create a diverse student body must be “narrowly tailored” to use the words of the court. “Narrow tailoring” means that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Read: The Court Misses and Opportunity

Read: The Court Misses an Opportunity

On this issue, UT is in trouble. The Top 10 percent Law, which remains the law in Texas, has resulted in a substantial percentage of minorities (African American and Hispanic) being admitted to UT. That law is exactly the kind of race-neutral alternative that constitutes “narrow tailoring” because it produces diversity and its benefits but without the need to use racial preferences. In a bizarre twist, UT apparently convinced the Fifth Circuit that its “holistic” admissions process (which uses race as a component), is, nevertheless, still necessary to achieve diversity.

Why? Amazingly, UT says it is because the minority students admitted under the top 10 percent law do not create the “quality” of diversity that UT desires. In a string of largely unsubstantiated propositions, UT appears to be arguing that students who are admitted via the Top 10 Percent Law come largely from schools where racial minorities predominate and, therefore, contribute only one type of diversity. UT believes that minority students who have been successful in predominately white schools, but have not made the 10 percent cut, contribute another kind of diversity. The holistic policy, it argues, allows members of this latter group to be admitted.

What should the Supreme Court do with this appeal? First, it is time for the justices to insist that public colleges and universities produce convincing evidence that a diverse student body produces enough clear, compelling benefits to justify race-conscious admissions. The court should retreat from its policy of “deferring” to universities on this issue. Secondly, if there are workable, narrowly-tailored, race-neutral admissions policies that produce a diverse student body, the court should demand that these policies be used without exception. The court should remind public colleges and universities of what Justice Clarence Thomas warns: “The Constitution abhors classifications based on race … [because] every time the government places citizens on a racial register and makes race relevant to the provision of burdens and benefits, it demeans us all.”

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

Keep Your Hands Off My Raisins: Court Invalidates Antiquated Raisin Grab

Laura and Marvin Horne are raisin farmers. Early one morning in 2002, a truck appeared at their business–and the drivers demanded a whopping 47 percent of their raisin crop. The truck was sent by the federal government, and those demanding Horne’s raisin crop claimed to be operating under a “marketing order” first put in place in 1937 as part of President Franklin Roosevelt’s effort to shore up agricultural prices. Amazingly, this antiquated scheme lasted for over 65 years—well past the agricultural crisis of the Great Depression.

By 2002, the Hornes had endured enough of these raisin grabs. They refused to turn over what amounted to nearly half of their crop. The federal government assessed a fine of $480,000 for the missing raisins and another $200,000 in civil penalties against the Hornes. The Hornes fought the government through the courts and finally landed in the U.S. Supreme Court.

The Agricultural Marketing Agreement Act of 1937 allowed the secretary of agriculture to issue marketing orders to stabilize market prices for certain agricultural products, including raisins. Under this order, raisin producers could be forced to relinquish a portion of what they produced to the government without any compensation. The percentage of the crops that had to be relinquished in a given year was determined by the Raisin Administrative Committee. The plan was that the government would keep these reserve raisins off the domestic market—a reduction in supply—to help to shore up prices. This system was originally part of the New Deal aimed at aiding farmers whose agricultural products had fallen steeply in price. Unfortunately, as with most government programs, it remained in effect despite the passing of the immediate economic emergency which spawned it.

In a recent decision, Chief Justice John Roberts and the majority agreed with the Hornes. Roberts stated that the Fifth Amendment requires that property cannot be taken by the government for public use without the original owner being properly compensated. Part of the Fifth Amendment, often dubbed the “takings clause,” has been interpreted to mean that when the government takes a private citizen’s property for a public purpose—such as, for example, for the building of a road—the owner must be paid a reasonable amount for the seized property. Here, even though the property (raisins) could be regarded as having been taken for a public use—the stabilizing of agricultural prices during an economic crisis—there was virtually no compensation being paid to raisin growers like the Hornes.

In a fitting tribute to the 800th anniversary of the great document of English liberties—Magna Carta—Roberts traced the origins of the Fifth Amendment’s takings clause to that charter and concluded that “the reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order.”

The government unsuccessfully argued that the takings clause did not apply to personal property, but the court roundly rejected that contention. Furthermore, the Department of Agriculture claimed that if the government successfully sold the seized raisins as exports, for example, growers like the Hornes might receive a residual payment which would amount to compensation. Again, the court said that the mere possibility of a residual payment was not equivalent to compensation. It was simply too contingent and indeterminate.

Other U.S. citizens are still subjected to a bevy of similar antiquated, unnecessary regulations. They should make ample use of the court’s holding here to challenge these governmental restraints and reintroduce the fresh air of freedom into markets for goods and services.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

This post originally appeared on Western Journalism – Equipping You With The Truth