Editing Antonin Scalia (section)

== Supreme Court ==

===Governmental structure and powers===

====Separation of powers====

[[File:Justice Antonin Scalia on Separation of Powers and Checks and Balances.webm|thumb|upright=1.15|Justice Scalia testified before the [[United States Senate Committee on the Judiciary|Senate Judiciary Committee]] about [[separation of powers]] and checks and balances of the U.S. Government]]

It was Scalia's view that clear lines of separation among the legislative, executive, and judicial branches follow directly from the Constitution, with no branch allowed to exercise powers granted to another branch.{{sfn|Ring|2004|pp=44–45}} In his early days on the Court, he authored a powerful<!-- word used by source -->—and solitary—dissent in ''[[Morrison v. Olson]]'' (1988), in which the Court's majority upheld the [[United States Office of the Independent Counsel|Independent Counsel law]]. Scalia's thirty-page draft dissent surprised Justice [[Harry Blackmun]] for its emotional content; Blackmun felt "it could be cut down to ten pages if Scalia omitted the screaming".<ref name="wolf">{{Harvnb|Biskupic|2009|pp=136–38}}.</ref> Scalia indicated that the law was an unwarranted encroachment on the executive branch by the legislative. He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing&nbsp;... But this wolf comes as a wolf".<ref name="wolf" />

The 1989 case of ''[[Mistretta v. United States]]'' challenged the [[United States Sentencing Commission]], an independent body within the judicial branch whose members (some of whom were federal judges) were removable only for good cause. The petitioner argued that the arrangement violated the separation of powers and that the [[United States Sentencing Guidelines]] promulgated by the commission were invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional.{{sfn|Staab|2006|pp=74–75}} Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate{{sfn|Staab|2006|p=76}} and dubbed the Commission "a sort of junior-varsity Congress".<ref name="wolf" />

In 1996, Congress passed the [[Line Item Veto Act]], which allowed the president to cancel items from an [[appropriations bill]] (a bill authorizing spending) once passed into law. The statute was challenged the following year. The matter rapidly reached the Supreme Court, which [[Clinton v. City of New York|struck down]] the law as violating the [[Presentment Clause]] of the Constitution, which governs what the president is permitted to do with a bill once it has passed both houses of Congress.{{sfn|Staab|2006|pp=78–79}} Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate the separation of powers. He argued that authorizing the president to cancel an appropriation was no different from allowing him to spend an appropriation at his discretion, which had long been accepted as constitutional.{{sfn|Staab|2006|pp=80–82}}

====Detainee cases====
[[File:Obamacourt.jpg|thumb|upright=1.15|alt=Nine judges in black robes pose for a photograph with three other men in suits.|The 2009–2010 Court, with President [[Barack Obama]], Vice President [[Joe Biden]] and retiring justice [[David Souter]] with Scalia fourth from right]]
In 2004, in ''[[Rasul v. Bush]]'', the Court held that federal courts had [[subject-matter jurisdiction|jurisdiction]] to hear ''[[habeas corpus]]'' petitions brought by detainees at the [[Guantanamo Bay detainment camp]]. Scalia accused the majority of "spring<nowiki>[ing]</nowiki> a trap on the Executive" by ruling that it could hear cases involving persons at Guantanamo when no federal court had ever ruled that it had the authority to hear cases involving people there.{{sfn|Biskupic|2009|pp=328–29}}

Scalia, joined by Justice [[John Paul Stevens]], also dissented in the 2004 case of ''[[Hamdi v. Rumsfeld]]'', involving [[Yaser Hamdi]], an American citizen detained in the United States on the allegation he was an [[enemy combatant]]. The Court held that although Congress had authorized Hamdi's detention, Fifth Amendment due process guarantees giving a citizen such as Hamdi held in the United States as an enemy combatant the right to contest that detention before a neutral decision maker. Scalia opined that the [[Authorization for Use of Military Force Against Terrorists|AUMF]] (Authorization for Use of Military Force Against Terrorists) could not be read to suspend ''habeas corpus'' and that the Court, faced with legislation by Congress that did not grant the president power to detain Hamdi, was trying to "Make Everything Come Out Right".<!-- caps in original -->{{sfn|Rossum|2006|pp=84–85}}

In March 2006, Scalia gave a talk at the University of Fribourg in Switzerland. When asked about detainee rights, he responded: "Give me a break&nbsp;... I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy".<ref name="bbc">{{Citation |title=Judge 'rejects Guantanamo rights' |date=March 27, 2006 |work=BBC News |url=http://news.bbc.co.uk/2/hi/americas/4848834.stm |access-date=January 29, 2010 |archive-url=https://web.archive.org/web/20100819131913/http://news.bbc.co.uk/2/hi/americas/4848834.stm |archive-date=August 19, 2010 |url-status=live}}</ref> Although Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of [[Salim Ahmed Hamdan]], supposed driver to [[Osama bin Laden]], who was challenging the [[Guantanamo military commission|military commissions]] at Guantanamo Bay.<ref name="bbc" /> A group of retired military officers that supported Hamdan's position asked Scalia to [[recusal|recuse]] himself, or step aside from hearing the case, which he declined to do.<ref>{{Citation |title=U.S. justices cast doubt on tribunal |date=March 28, 2006 |work=The New York Times |url=https://www.nytimes.com/2006/03/28/world/americas/28iht-scotus.html |access-date=January 27, 2010 |archive-url=https://web.archive.org/web/20160229031745/http://www.nytimes.com/2006/03/28/world/americas/28iht-scotus.html |archive-date=February 29, 2016 |url-status=live}}</ref> The Court held 5–3 in ''[[Hamdan v. Rumsfeld]]'' that the federal courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any Court authority to consider Hamdan's petition had been eliminated by the [[jurisdiction stripping|jurisdiction-stripping]] [[Detainee Treatment Act]] of 2005.<ref>{{Citation |last=Greenhouse |first=Linda |title=The ruling on tribunals; the overview; Justices, 5–3, broadly reject Bush plan to try detainees |date=June 30, 2006b |work=The New York Times |url=https://www.nytimes.com/2006/06/30/washington/30hamdan.html |access-date=January 27, 2010 |archive-url=https://web.archive.org/web/20110505213531/http://www.nytimes.com/2006/06/30/washington/30hamdan.html |archive-date=May 5, 2011 |url-status=live}}</ref>

====Federalism====
[[File:Perry Scalia Wiki.jpg|thumb|Scalia (left) at the [[University of Virginia School of Law]], 2010]]
In [[federalism]] cases pitting the powers of the federal government against those of the states, Scalia often took the states' positions. In 1997, the Supreme Court considered the case of ''[[Printz v. United States]]'', a challenge to certain provisions of the [[Brady Handgun Violence Prevention Act]], which required chief law enforcement officers of localities in states to perform certain duties. In ''Printz'', Scalia wrote the Court's majority decision. The Supreme Court ruled unconstitutional the provision that imposed those duties as violating the [[Tenth Amendment to the United States Constitution|Tenth Amendment]], which reserves to the states and to the people those powers not granted to the federal government.{{sfn|Rossum|2006|pp=61–63}} In 2005, Scalia concurred in ''[[Gonzales v. Raich]]'', which read the [[Commerce Clause]] to hold that Congress could ban the use of [[marijuana]] even when states approve its use for [[medical marijuana|medicinal purposes]]. Scalia opined that the Commerce Clause, together with the [[Necessary and Proper Clause]], permitted the regulation. In addition, Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general regulation of interstate commerce.<ref>{{Citation |last=Mazzone |first=Jason |title=''Virginia v. Sebelius'': Judge Hudson & Justice Scalia |date=December 13, 2010 |work=[[Balkinization (blog)|Balkinization]] |url=http://balkin.blogspot.com/2010/12/criticism-of-judge-hudsons-opinion.html |access-date=December 14, 2010 |archive-url=https://web.archive.org/web/20110107201541/http://balkin.blogspot.com/2010/12/criticism-of-judge-hudsons-opinion.html |archive-date=January 7, 2011 |url-status=live}}</ref> He based that decision on ''[[Wickard v. Filburn]]'', which he now wrote "expanded the Commerce Clause beyond all reason".<ref>{{Cite news |last=Campos |first=Paul |date=June 24, 2012 |title=Scalia's scary thinking |url=http://www.salon.com/2012/06/24/scalias_scary_thinking/ |url-status=live |archive-url=https://web.archive.org/web/20120624165406/http://www.salon.com/2012/06/24/scalias_scary_thinking/ |archive-date=June 24, 2012 |access-date=June 24, 2012 |work=[[Salon (website)|Salon]]}}</ref>

Scalia rejected the existence of the [[Dormant Commerce Clause|negative Commerce Clause]] doctrine,<ref>{{Citation |last=Dorf |first=Michael |title=Is the Dormant Commerce Clause a 'Judicial Fraud'? |date=May 20, 2015 |url=https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud |access-date=November 23, 2015 |archive-url=https://web.archive.org/web/20151123205757/https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud |archive-date=November 23, 2015 |url-status=live |publisher=Justia}}</ref><ref>{{Cite journal |last=Friedman |first=Richard D. |date=June 1991 |title=Putting the Dormancy Doctrine out of its misery |url=http://heinonline.org/HOL/LandingPage?handle=hein.journals/cdozo12&div=73&src=home |url-status=live |journal=[[Benjamin N. Cardozo School of Law|Cardozo Law Review]] |publisher=[[Benjamin N. Cardozo School of Law]] |volume=12 |issue=6 |pages=1745–61 |archive-url=https://web.archive.org/web/20210224183536/https://heinonline.org/HOL/LandingPage?handle=hein.journals%2Fcdozo12&div=73&src=home |archive-date=February 24, 2021 |access-date=November 8, 2021}} [http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1176&context=articles Pdf via University of Michigan Law School Scholarship Repository.] {{Webarchive|url=https://web.archive.org/web/20160308203133/http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1176&context=articles |date=March 8, 2016 }}</ref> calling it "a judicial fraud".<ref>{{Citation |last=Scalia |first=Antonin |title=Comptroller of the Treasury of Maryland, petitioner v. Brian Wynne et ux. |page=33 |url=https://www.supremecourt.gov/opinions/14pdf/13-485_o7jp.pdf |access-date=June 27, 2017 |archive-url=https://web.archive.org/web/20170615235824/https://www.supremecourt.gov/opinions/14pdf/13-485_o7jp.pdf |archive-date=June 15, 2017 |url-status=live |quote=The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause... The clearest sign that the negative Commerce Clause is a judicial fraud is the utterly illogical holding that congressional consent enables States to enact laws that would otherwise constitute impermissible burdens upon interstate commerce.}}</ref>

Scalia took a broad view of the [[Eleventh Amendment to the United States Constitution|Eleventh Amendment]], which bars certain lawsuits against states in the federal courts. In his 1989 dissent in ''[[Pennsylvania]] v. [[Union Gas]] Co.'', Scalia stated that there was no intent on the part of the framers to have the states surrender any [[sovereign immunity]] and that the case that provoked the Eleventh Amendment, ''[[Chisholm v. Georgia]]'', came as a surprise to them. Professor Ralph Rossum, who wrote a survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment was actually contradictory to the language of the Amendment.{{sfn|Rossum|2006|pp=110–12}}

===Individual rights===

====Abortion====
Scalia argued that there is no constitutional right to abortion and that if the people desire legalized abortion, a law should be passed to accomplish it.<ref name="sixty" /> In his dissenting opinion in the 1992 case of ''[[Planned Parenthood v. Casey]]'', Scalia wrote:
{{blockquote|
The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.<ref>{{Citation |title=Planned Parenthood v. Casey, ''505 U.S. 833, 979 (Scalia, J., dissenting)'' |date=June 29, 1992 |url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=833 |access-date=January 13, 2010 |archive-url=https://web.archive.org/web/20100107184430/http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=833 |archive-date=January 7, 2010 |url-status=live |publisher=United States Supreme Court |via=FindLaw}}</ref>
}}{{Quote box
| quote = "We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will."

— Scalia, concurring in ''[[Webster v. Reproductive Health Services]]''
| width = 20%
}}Scalia repeatedly called upon his colleagues to strike down ''[[Roe v. Wade]]''. Scalia hoped to find five votes to strike down ''Roe'' in the 1989 case of ''[[Webster v. Reproductive Health Services]]'' but was not successful in doing so. Justice [[Sandra Day O'Connor]] cast the deciding vote, allowing the abortion regulations at issue in the case to stand but not overruling ''Roe''. Scalia concurred only in part,{{sfn|Biskupic|2009|pp=193–95}} writing, "Justice O'Connor's assertion, that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering ''Roe'' cannot be taken seriously".{{sfn|Ring|2004|p=108}} He noted, "We can now look forward to at least another Term of carts full of mail from the public, and the streets full of demonstrators".{{sfn|Ring|2004|p=109}}

The Court returned to the issue of abortion in the 2000 case of ''[[Stenberg v. Carhart]]'', in which it invalidated a Nebraska statute outlawing [[partial-birth abortion]]. Justice [[Stephen Breyer]] wrote for the Court that the law was unconstitutional because it did not allow an exception for the health of the woman. Scalia dissented, comparing the ''Stenberg'' case to two of the most reviled cases in Supreme Court history: "I am optimistic enough to believe that, one day, ''Stenberg v. Carhart'' will be assigned its rightful place in the history of this Court's jurisprudence beside ''[[Korematsu v. United States|Korematsu]]'' and ''[[Dred Scott v. Sandford|Dred Scott]]''. The method of killing a human child&nbsp;... proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion".{{sfn|Ring|2004|pp=137–38}}

In 2007, the Court upheld a federal statute banning partial-birth abortion in ''[[Gonzales v. Carhart]]''.{{sfn|Biskupic|2009|pp=202–03}} University of Chicago law professor [[Geoffrey R. Stone]], a former colleague of Scalia's, criticized ''Gonzales'', stating that religion had influenced the outcome because all five justices in the majority were Catholic, whereas the dissenters were Protestant or Jewish.<ref>{{Citation |last=Stone |first=Geoffrey |title=Our Faith-Based Justices |date=April 20, 2007 |work=[[The Huffington Post]] |url=https://www.huffingtonpost.com/geoffrey-r-stone/our-faithbased-justices_b_46398.html |access-date=February 18, 2020 |archive-url=https://web.archive.org/web/20171105042816/https://www.huffingtonpost.com/geoffrey-r-stone/our-faithbased-justices_b_46398.html |archive-date=November 5, 2017 |url-status=live |author-link=Geoffrey Stone}}</ref> This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone was there.{{sfn|Biskupic|2009|pp=203–04}}

====Race, gender, and sexual orientation====
Scalia generally voted to strike down laws that make distinctions by race, gender, or sexual orientation. In 1989, he concurred with the Court's judgment in ''[[City of Richmond v. J.A. Croson Co.]]'', in which the Court applied [[strict scrutiny]] to a city program requiring a certain percentage of contracts to go to minorities, and struck down the program. Scalia did not join the majority opinion, however. He disagreed with O'Connor's opinion for the Court, holding that states and localities could institute race-based programs if they identified past discrimination and if the programs were designed to remedy the past racism.{{sfn|Ring|2004|pp=87–88}} Five years later, in ''[[Adarand Constructors, Inc. v. Peña]]'', he concurred in the Court's judgment and in part with the opinion that extended strict scrutiny to federal programs. Scalia noted in that matter his view that government can never have a compelling interest in making up for past discrimination by racial preferences:
{{blockquote|
To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.{{sfn|Ring|2004|pp=56–57}}
}}
In the 2003 case of ''[[Grutter v. Bollinger]]'', involving racial preferences in the [[University of Michigan]]'s law school, Scalia mocked<!-- so says the source --> the Court majority's finding that the school was entitled to continue using race as a factor in admissions to promote diversity and to increase "cross-racial understanding". Scalia noted:
{{blockquote|This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.{{sfn|Rossum|2006|pp=159–60}}}}
[[File:Lawrence v. Texas Scalia Dissent Title.png|thumb|Opening page of Scalia's dissent in ''Lawrence v. Texas'']]
Scalia argued that laws that make distinctions between genders should be subjected to [[intermediate scrutiny]], requiring that the gender classification be substantially related to important government objectives.{{sfn|Ring|2004|p=194}} When, in 1996, the Court upheld a suit brought by a woman who wished to enter the [[Virginia Military Institute]] in the case of ''[[United States v. Virginia]]'', Scalia filed a lone, lengthy dissent. Scalia said that the Court, in requiring Virginia to show an "extremely persuasive justification" for the single-sex admission policy, had redefined intermediate scrutiny in such a way "that makes it indistinguishable from strict scrutiny".{{sfn|Ring|2004|p=195}}

In one of the final decisions of the Burger Court, the Court ruled in 1986 in ''[[Bowers v. Hardwick]]'' that "homosexual sodomy"<ref>{{Cite web |title=Bowers v. Hardwick |url=https://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO.html |url-status=live |archive-url=https://web.archive.org/web/20131104192359/http://www.law.cornell.edu/supct/html/historics/USSC_CR_0478_0186_ZO.html |archive-date=November 4, 2013 |access-date=September 25, 2016 |publisher=Law.cornell.edu}}</ref> was not protected by the [[right of privacy]] and could be criminally prosecuted by the states.{{sfn|Ring|2004|pp=279–80}} In 1995, however, that ruling was effectively gutted by ''[[Romer v. Evans]]'', which struck down a Colorado state constitutional amendment, passed by popular vote, that forbade antidiscrimination laws' being extended to sexual orientation.<ref name="as">{{Harvnb|Tushnet|2005|pp=167–69}}.</ref> Scalia dissented from the opinion by Justice Kennedy, believing that ''Bowers'' had protected the right of the states to pass such measures and that the Colorado amendment was not discriminatory but merely prevented homosexuals from gaining favored status under Colorado law.{{sfn|Ring|2004|pp=280–81}} Scalia later said of ''Romer'', "And the Supreme Court said, 'Yes, it is unconstitutional.' On the basis of—I don't know, the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth".{{sfn|Biskupic|2009|p=283. There is no such clause in the Bill of Rights}}

In 2003, ''Bowers'' was formally overruled by ''[[Lawrence v. Texas]]'', from which Scalia dissented. According to [[Mark V. Tushnet]] in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state's argument for it that the Chief Justice intervened.{{sfn|Tushnet|2005|pp=170–72}} According to his biographer, [[Joan Biskupic]], Scalia "ridiculed" the majority in his dissent for being so ready to cast aside ''Bowers'' when many of the same justices had refused to overturn ''Roe'' in ''Planned Parenthood v. Casey''.{{sfn|Biskupic|2009|pp=225–27}} In March 2009, openly gay Congressman [[Barney Frank]] described him as a "homophobe".<ref>{{Citation |title=''"Rep. Frank calls Scalia a 'homophobe' in interview"'' |date=March 23, 2009 |work=ABC News |url=https://abcnews.go.com/Politics/wireStory?id=7154174 |access-date=February 18, 2010 |archive-url=https://web.archive.org/web/20090327001319/https://abcnews.go.com/Politics/wireStory?id=7154174 |archive-date=March 27, 2009 |url-status=dead |agency=Associated Press}}</ref> [[Maureen Dowd]] described Scalia in a 2003 column as "[[Archie Bunker]] in a high-backed chair".<ref>{{Citation |last=Dowd |first=Maureen |title=Nino's Opéra Bouffe |date=June 29, 2003 |work=The New York Times |url=https://www.nytimes.com/2003/06/29/opinion/29DOWD.html |access-date=February 18, 2010 |archive-url=https://web.archive.org/web/20100925122740/http://www.nytimes.com/2003/06/29/opinion/29DOWD.html |archive-date=September 25, 2010 |url-status=live}}</ref> In an op-ed for ''[[The New York Times]]'', federal appeals judge [[Richard Posner]] and [[Georgia State University]] law professor [[Eric Segall]] called Scalia's positions on homosexuality radical and characterized Scalia's "political ideal as verg[ing] on [[majoritarian]] [[theocracy]]".<ref>{{Citation |title=Justice Scalia's Majoritarian Theocracy |date=December 2, 2015 |work=The New York Times |url=https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html |access-date=February 5, 2017 |archive-url=https://web.archive.org/web/20170216080413/https://www.nytimes.com/2015/12/03/opinion/justice-scalias-majoritarian-theocracy.html |archive-date=February 16, 2017 |url-status=live}}</ref> Former Scalia clerk Ed Whelan called this "a smear and a distraction."<ref>{{Cite web |date=December 3, 2015 |title=Puerile Posner |url=https://www.nationalreview.com/bench-memos/puerile-posner-ed-whelan/ |url-status=live |archive-url=https://web.archive.org/web/20200808065350/https://www.nationalreview.com/bench-memos/puerile-posner-ed-whelan/ |archive-date=August 8, 2020 |access-date=January 29, 2020 |website=[[National Review]]}}</ref> Professor John O. McGinnis responded as well,<ref>{{Cite web |date=December 3, 2015 |title=Posner's Unjustified Attack on Scalia |url=https://www.lawliberty.org/2015/12/03/posners-unjustified-attack-on-scalia/ |url-status=live |archive-url=https://web.archive.org/web/20200129191702/https://www.lawliberty.org/2015/12/03/posners-unjustified-attack-on-scalia/ |archive-date=January 29, 2020 |access-date=January 29, 2020 |website=Law & Liberty}}</ref> leading to further exchanges.<ref>{{Cite web |last=Segall |first=Eric |date=December 7, 2015 |title=More on Justice Scalia: A Reply to Two Critics |url=http://www.dorfonlaw.org/2015/12/more-on-justice-scalia-reply-to-two.html |url-status=live |archive-url=https://web.archive.org/web/20200129195235/http://www.dorfonlaw.org/2015/12/more-on-justice-scalia-reply-to-two.html |archive-date=January 29, 2020 |access-date=January 29, 2020}}</ref><ref>{{Cite web |date=December 7, 2015 |title=Feeble Posner/Segall Response |url=https://www.nationalreview.com/bench-memos/feeble-posnersegall-response-ed-whelan/ |url-status=live |archive-url=https://web.archive.org/web/20210312213301/https://www.nationalreview.com/bench-memos/feeble-posnersegall-response-ed-whelan/ |archive-date=March 12, 2021 |access-date=January 29, 2020 |website=[[National Review]]}}</ref>

In the 2013 case of ''[[Hollingsworth v. Perry]]'', which involved a California ballot initiative known as [[Proposition 8]] that amended the California State Constitution to ban same-sex marriage, Scalia voted with the majority to uphold a lower court decision overturning the ban. The decision was based on the appellants' lack of standing to appeal and not on the substantive issue of the constitutionality of Proposition 8.<ref name="slip-opinion">{{Cite web |last=Supreme Court of the United States |author-link=Supreme Court of the United States |date=June 26, 2013 |title=Hollingsworth v. Perry, 570 U.S. ___ |url=https://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf |url-status=live |archive-url=https://web.archive.org/web/20190205234747/https://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf |archive-date=February 5, 2019 |access-date=January 12, 2019 |publisher=[[Supreme Court of the United States]]}}</ref>

Also in 2013, Scalia dissented from the majority opinion in ''[[United States v. Windsor]]''. In ''Windsor'', the Court held Section Three of the [[Defense of Marriage Act]] (DOMA) (which—for federal government purposes—defined the terms "marriage" and "spouse" as applicable only to opposite-sex unions) unconstitutional under the [[Due Process Clause]] of the [[Fifth Amendment to the United States Constitution|Fifth Amendment]].<ref name="Opinion">''United States v. Windsor'', {{ussc|570||June 26, 2013|docket=12-307}}. Retrieved June 26, 2013.</ref> Scalia's dissent, which was joined in full by Justice Thomas and in part by Chief Justice Roberts,<ref>''Windsor'', {{ussc|570||2013|docket=12-307}}  (Scalia, J., dissenting slip op.).</ref> opened:
{{blockquote|This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.}}

Scalia argued that the judgment effectively characterized opponents of same-sex marriage as "enemies of the human race":<ref>{{Cite news |last=Tim Grieve |date=June 26, 2013 |title=Scalia: 'High-Handed' Kennedy Has Declared Us 'Enemies of the Human Race' |url=http://www.nationaljournal.com/domesticpolicy/scalia-high-handed-kennedy-has-declared-us-enemies-of-the-human-race-20130626 |url-status=live |archive-url=https://web.archive.org/web/20150913005801/http://www.nationaljournal.com/domesticpolicy/scalia-high-handed-kennedy-has-declared-us-enemies-of-the-human-race-20130626 |archive-date=September 13, 2015 |access-date=June 26, 2013 |work=National Journal}}</ref><ref>{{Cite magazine |last=Tim Grieve |date=June 26, 2013 |title=Scalia's Blistering Dissent on DOMA |url=https://www.theatlantic.com/national/archive/2013/06/scalias-blistering-dissent-on-doma/277245/#comments |url-status=live |archive-url=https://web.archive.org/web/20130630001836/http://www.theatlantic.com/national/archive/2013/06/scalias-blistering-dissent-on-doma/277245/#comments |archive-date=June 30, 2013 |access-date=June 26, 2013 |magazine=The Atlantic}}</ref> He argued that the Court's ruling would affect [[Same-sex marriage law in the United States by state|state bans on same-sex marriage]] as well:
{{blockquote|As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.<ref>{{Cite web |last=Gerstein |first=Josh |date=June 26, 2013 |title=The DOMA decision ripple effect |url=http://www.politico.com/story/2013/06/doma-decision-gay-marriage-ripple-effect-93479.html |url-status=live |archive-url=https://web.archive.org/web/20130630151413/http://www.politico.com/story/2013/06/doma-decision-gay-marriage-ripple-effect-93479.html |archive-date=June 30, 2013 |access-date=July 2, 2013 |publisher=Politico.com}}</ref>}}

Scalia concluded by saying that the Supreme Court "has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat."<ref name="Opinion" />[[File:SCOTUS 2015 APRIL LGBTQ 54819 (17302763245).jpg|thumb|Demonstrations outside the Supreme Court awaiting the decision in ''[[Obergefell v. Hodges]]''|253x253px]]In 2015, Scalia dissented from the majority opinion in ''[[Obergefell v. Hodges]]'', in which the Court ruled that the fundamental right to marry was guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In his dissent, Scalia stated that the Court's decision effectively robbed the people of "the freedom to govern themselves", noting that a rigorous debate on same-sex marriage had been taking place and that—by deciding the issue nationwide—the democratic process had been halted.<ref>''Obergefell v. Hodges'', No. 14-556, [https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf slip op.] {{Webarchive|url=https://web.archive.org/web/20191002050103/https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf |date=October 2, 2019 }} at 2 (U.S. June 26, 2015) (Scalia, J., dissenting).</ref> Addressing the claimed [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] violation, Scalia asserted that because a same-sex marriage ban would not have been considered unconstitutional at the time of the Fourteenth Amendment's adoption, such bans are not unconstitutional in 2015.<ref name="ReferenceA">''Obergefell'', [https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf slip op.] {{Webarchive|url=https://web.archive.org/web/20191002050103/https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf |date=October 2, 2019 }} at 4 (Scalia, J., dissenting).</ref> He claimed there was "no basis" for the Court to strike down legislation that the Fourteenth Amendment did not expressly forbid, and directly attacked the majority opinion for "lacking even a thin veneer of law".<ref name="ReferenceA" /> Lastly, Scalia faulted the actual writing in the opinion for "diminish[ing] this Court's reputation for clear thinking and sober analysis" and for "descend[ing] from the disciplined legal reasoning of [[John Marshall]] and [[Joseph Story]] to the mystical aphorisms of the fortune cookie."<ref>''Obergefell'', [https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf slip op.] {{Webarchive|url=https://web.archive.org/web/20191002050103/https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf |date=October 2, 2019 }} at 9, 8 n.22 (Scalia, J., dissenting).</ref>

====Criminal law====
[[File:Scalia toplak harvard.jpg|upright=1.15|thumb|alt=Scalia, wearing a beige jacket over shirt and tie, shakes hands with Jurij Toplak of European Election Law Association, while looking forward towards the camera.|right|Scalia (right) at [[Harvard Law School]] on November 30, 2006]]
Scalia believed the [[capital punishment in the United States|death penalty]] to be constitutional.{{sfn|Ring|2004|p=144}}<ref>{{Cite book |last=Brisbin |first=Richard |url=https://archive.org/details/justiceantoninsc00rich |title=Justice Antonin Scalia and the Conservative Revival |date=1998 |publisher=JHU Press |isbn=9780801860942 |pages=488 |url-access=registration}}</ref> He dissented in decisions that hold the death penalty unconstitutional as applied to certain groups, such as those who were under the age of 18 at the time of offense. In ''[[Thompson v. Oklahoma]]'' (1988), he dissented from the Court's ruling that the death penalty could not be applied to those aged 15 at the time of the offense, and the following year authored the Court's opinion in ''[[Stanford v. Kentucky]]'', sustaining the death penalty for those who killed at age 16. However, in 2005, the Court overturned ''Stanford'' in ''[[Roper v. Simmons]]'', and Scalia again dissented, mocking the majority's claims that a national consensus had emerged against the execution of those who killed while [[underage]], noting that less than half of the states that permitted the death penalty prohibited it for underage killers. He castigated the majority for including in their count states that had abolished the death penalty entirely, stating that doing so was "rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue".{{sfn|Rossum|2006|pp=192–93}} In 2002, in ''[[Atkins v. Virginia]]'', the Court ruled the death penalty unconstitutional as applied to mentally retarded people. Scalia dissented, stating that it would not have been considered cruel or unusual to execute mildly mentally retarded people at the time of the 1791 adoption of the Bill of Rights and that the Court had failed to show that a national consensus had formed against the practice.{{sfn|Ring|2004|p=148}}

Scalia strongly disfavored the Court's ruling in ''[[Miranda v. Arizona]]'', which held that a confession by an arrested suspect who had not been [[Miranda warnings|advised of their rights]] was inadmissible in court, and he voted to overrule ''Miranda'' in the 2000 case of ''[[Dickerson v. United States]]'' but was in a minority of two with Justice [[Clarence Thomas]]. Calling the ''Miranda'' decision a "milestone of judicial overreaching", Scalia stated that the Court should not fear to correct its mistakes.{{sfn|Toobin|2008|p=146}}

Although, in many areas, Scalia's approach was unfavorable to criminal defendants, he took the side of defendants in matters involving the [[Confrontation Clause]] of the [[Sixth Amendment to the United States Constitution|Sixth Amendment]], which guarantees defendants the right to confront their accusers. In multiple cases, Scalia wrote against laws that allowed alleged victims of child abuse to testify behind screens or by closed-circuit television.{{sfn|Rossum|2006|pp=182–84}} In a 2009 case, Scalia wrote the majority opinion in ''[[Melendez-Diaz v. Massachusetts]]'', holding that defendants must have the opportunity to confront lab technicians in drug cases and that a certificate of analysis is not enough to prove a substance was a drug.{{sfn|Biskupic|2009|p=354}}

Scalia maintained that every [[Element (criminal law)|element]] of an offense that helps determine the sentence must be either admitted by the defendant or found by a jury under the Sixth Amendment's jury guarantee. In the 2000 case of ''[[Apprendi v. New Jersey]]'', Scalia wrote a concurrence to the Court's majority opinion that struck down a state statute that allowed the trial judge to increase the sentence if the judge found the offense was a [[hate crime]]. Scalia found the procedure impermissible because whether it was a hate crime had not been decided by the jury.<ref name="coy" /> In 2004, he wrote for the Court in ''[[Blakely v. Washington]]'', striking down Washington state's sentencing guidelines on similar grounds. The dissenters in ''Blakely'' foresaw that Scalia would use the case to attack the federal sentencing guidelines (which he had failed to strike down in ''Mistretta''), and they proved correct, as Scalia led a five-member majority in ''[[United States v. Booker]]'', which made those guidelines no longer mandatory for federal judges to follow (they remained advisory).<ref name="coy">{{Harvnb|Rossum|2006|pp=184–86}}.</ref>

In the 2001 case of ''[[Kyllo v. United States]]'', Scalia wrote the Court's opinion in a 5–4 decision that cut across ideological lines.<ref group="n">Scalia was joined by Justices Thomas, Souter, Breyer, and Ginsburg.</ref> That decision found thermal imaging of a home to be an unreasonable search under the [[Fourth Amendment to the United States Constitution|Fourth Amendment]]. The Court struck down a conviction for marijuana manufacture based on a search warrant issued after such scans were conducted, which showed that the garage was considerably hotter than the rest of the house because of indoor growing lights.<ref>{{Citation |title=''Kyllo v. United States'', 533 U.S. 27 |date=June 11, 2001 |url=http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=533&invol=27 |access-date=January 24, 2010 |archive-url=https://web.archive.org/web/20110718202600/http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=533&invol=27 |archive-date=July 18, 2011 |url-status=live |publisher=United States Supreme Court |via=FindLaw}}</ref> Applying that Fourth Amendment prohibition on unreasonable search and seizure to arrest, Scalia dissented from the Court's 1991 decision in ''[[County of Riverside v. McLaughlin]]'', allowing a 48-hour delay before a person arrested without a warrant is taken before a magistrate, on the ground that at the time of the adoption of the Fourth Amendment, an arrested person was to be taken before a magistrate as quickly as practicable.{{sfn|Rossum|2006|p=175}} In a 1990 [[First Amendment to the United States Constitution|First Amendment]] case, ''[[R.A.V. v. St. Paul]]'', Scalia wrote the Court's opinion striking down a [[St. Paul, Minnesota]], [[hate speech]] ordinance in a prosecution for burning a cross.{{sfn|Tushnet|2005|pp=140–42}} Scalia noted, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire".{{sfn|Rossum|2006|p=2}}

====Second Amendment====
{{Quote box
| quote = "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

— Scalia, writing for the majority in ''[[District of Columbia v. Heller]]''
| width = 20%
}}

In 2008, the Court considered a challenge to the gun laws in the [[District of Columbia]]. Scalia wrote the majority opinion in ''[[District of Columbia v. Heller]]'', which found an individual right to own a firearm under the [[Second Amendment to the United States Constitution|Second Amendment]]. Scalia traced the word "militia", found in the Second Amendment, as it would have been understood at the time of its ratification, stating that it then meant "the body of all citizens".<ref name="second" /> The Court upheld Heller's claim to own a firearm in the District.<ref name="second" />

Scalia's opinion for the ''Heller'' Court was criticized by liberals and applauded by conservatives.<ref name="second2">{{Harvnb|Biskupic|2009|pp=347–51}}.</ref> Seventh Circuit judge [[Richard Posner]] disagreed with Scalia's opinion, stating that the Second Amendment "creates no right to the private possession of guns". Posner called Scalia's opinion "faux originalism" and a "historicizing glaze on personal values and policy preferences".<ref>{{Citation |last=Posner |first=Richard |title=In defense of looseness |date=August 27, 2008 |magazine=The New Republic |url=https://newrepublic.com/article/62124/defense-looseness |access-date=February 13, 2014 |archive-url=https://web.archive.org/web/20151115075301/https://newrepublic.com/article/62124/defense-looseness |archive-date=November 15, 2015 |url-status=live}}</ref> In October 2008, Scalia stated that the court's originalists needed to show only that at the time the Second Amendment was ratified, the right to bear arms did not have an exclusively military context and that they were successful in so showing.<ref>{{Citation |last=McArdle |first=Elaine |title=In inaugural Vaughan Lecture, Scalia defends the "methodology of originalism" |date=October 3, 2008 |url=http://www.law.harvard.edu/news/spotlight/constitutional-law/scalia-vaughan-lecture.html |access-date=January 14, 2010 |archive-url=https://web.archive.org/web/20100129043832/http://www.law.harvard.edu/news/spotlight/constitutional-law/scalia-vaughan-lecture.html |archive-date=January 29, 2010 |url-status=live |publisher=Harvard Law School}}</ref>

====Litigation and standing====
Following the death of Scalia, Paul Barrett, writing for ''[[Bloomberg Businessweek]]'', reported that: "Translating into liberal argot: Scalia changed the rules for who could sue". The issue elevated the recognition of Scalia as a notable influence on establishing and determining the conditions under which cases could be brought to trial and for litigation—and by whom such litigation could take place.<ref>{{Cite news |date=February 16, 2016 |title=How Scalia Kept the Little Guys Out of Court |url=https://www.bloomberg.com/news/articles/2016-02-16/how-scalia-kept-the-little-guys-out-of-court |url-status=live |archive-url=https://web.archive.org/web/20170202035748/https://www.bloomberg.com/news/articles/2016-02-16/how-scalia-kept-the-little-guys-out-of-court |archive-date=February 2, 2017 |access-date=January 30, 2017 |work=Bloomberg.com |via=www.bloomberg.com}}</ref> David Rivkin, from the conservative standpoint, said, "He (Scalia) did more to clarify and limit the bounds and scope of judicial power than any Supreme Court Justice in history, particularly in the area of standing and class actions". Scalia indicated his long-held position from the time of his 1983 law review article titled "The Doctrine of Standing as an Essential Element of the Separation of Powers". As summarized by Barrett, "He (Scalia) wrote that courts had misappropriated authority from other branches of government by allowing too many people to sue corporations and government agencies, especially in environmental cases". In a practical sense, Scalia brought to the attention of the Court the authority to restrict "standing" in class action suits in which the litigants may be defined in descriptive terms rather than as well-defined and unambiguous litigants.<ref>Paul Barrett, "Justice for the Big Guys," ''Bloomberg News Weekly'', February 15, 2016, p. 13.</ref>

===Other cases===
Scalia concurred in the 1990 case of ''[[Cruzan v. Director, Missouri Department of Health]]'', in which the family of [[Nancy Cruzan|a woman]] in a [[vegetative state]] sought to have her feeding tube removed so she would die, believing that to have been her wish. The Court found for the State of Missouri, requiring [[clear and convincing evidence]] of such a desire. Scalia stated that the Court should have remained away from the dispute and that the issues "are <nowiki>[not]</nowiki> better known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory".<ref name="second">{{Harvnb|Biskupic|2009|pp=135–36}}.</ref>

Scalia joined the majority ''[[per curiam]]'' opinion in the 2000 case of ''[[Bush v. Gore]]'', which effectively ended recounts of ballots in Florida following the [[2000 United States presidential election|2000 US presidential election]], and also both concurred separately and joined Rehnquist's concurrence.{{sfn|Biskupic|2009|p=243}} In 2007, he said of the case, "I and my court owe no apology whatever for ''Bush v. Gore''. We did the right thing. So there!&nbsp;... get over it. It's so old by now".<ref>{{Citation |title=Justice Scalia on the record |date=September 14, 2007 |work=CBS News |url=https://www.cbsnews.com/news/justice-scalia-on-the-record/ |access-date=January 31, 2010 |archive-url=https://web.archive.org/web/20100205194142/http://www.cbsnews.com/stories/2008/04/24/60minutes/main4040290_page3.shtml?tag=contentMain%3BcontentBody |archive-date=February 5, 2010 |url-status=live}}</ref> During an interview on the [[Charlie Rose (talk show)|''Charlie Rose'' show]], he defended the Court's action:
{{blockquote|
The decision was not close, it was 7–2 on the principal issue of whether there had been a constitutional violation&nbsp;... But what if it was unconstitutional to have that recount? You're going to let it continue and come to a conclusion? And ''then'' overturn it? The reason to stop it sooner was not, "Ooh, we're worried that it's going to come out the wrong way"...&nbsp; you forget what was going on at the time. We were the laughingstock of the world. The world's greatest democracy that couldn't conduct an election. We didn't know who our next president was going to be. The lengthy transition that has become standard when you change from one president to another could not begin because you didn't know who the new president was going to be. It was becoming a very serious problem. The issue before the United States Supreme Court is: having decided the case, having decided this is unconstitutional, should we nonetheless let the election go on? Or is it time cut it off and let's move on?<ref>{{Citation |title=A Conversation with Justice Antonin Scalia |date=June 20, 2008 |work=Charlie Rose |url=http://www.charlierose.com/view/interview/9141 |access-date=January 31, 2010 |archive-url=https://web.archive.org/web/20090705104255/http://www.charlierose.com/view/interview/9141 |archive-date=July 5, 2009 |format=video}}</ref>
}}