Scalia had brilliant clarity of thinking.
RIP Mr. Scalia. It was a joy to read your thoughtful, and often amusing opinions. You will be next to impossible to replace.
Too bad he didn’t have the foresight to avoid staying at the home of a major Obama supporter.
Scalia knew that there is a profound legal difference between "the People" who had the power to "assert" their liberty in the Declaration, and the "persons" and "individuals" who are the subjects of the Supreme Court. Thus his criticism here went far beyond Obergefell. Few really understand what he was trying to draw attention to. And, if he was murdered, it was for these efforts, nothing else.
The fact that the death of one man can endanger the Republic itself suggests that the judicial branch has far too much power.
This is what it’s like to have moral clarity.
What a shame that in today’s era, such a person is irreplaceable. Common sense, wisdom, and morality used to be, well, common. Not so much anymore.
Let's look at one of those "lance-like" questions. Alan Favish made a FOIA request to obtain copies of photographs taken in Fort Marcy Park at the Foster death scene. The law, as I understand it, protects the privacy interest of a person while he is alive, but not afterwards.
So what did the great "strict constructionist," Scalia, do? He worried about how Foster's surviving relatives would "feel." (Wouldn't this have been an issue for the LEGISLATORS?) And anyway lawyer Favish didn't really demonstrate any government investigations reached the wrong conclusions. (As if this were relevant to the FOIA.) Scalia apparently thought things like never having a certified handwriting analyst producing an opinion about the torn note, failing to consider testimony from a completely rational man who was in the park who said Foster's car wasn't there, etc., just amounted to "foot-faults."
And besides, "Who cares?"
Scalia might have been been better that day than Ginsberg, who couldn't form a complete sentence, but the bottom line is that that's not saying much.
Here's the transcript of Scalia's question to Favish:
Mr. Favish, here's - here's my - I mean, one - once you get past the first - the first issue, whether the privacy exemption at all covers this, if you assume it does cover it, you have relatives here who are going to be very much - very much harmed by - by this, as is shown by the mere fact that they've conducted this lengthy litigation. It's lasted how long, and I'm sure it's been expensive. Now, what is the interest on the other side? If - if you - if you had a plausible case that - that these investigations reached the wrong conclusion, I'd say, yeah, that's a pretty significant governmental interest. But I don't see that here. I - you - you - you've just demonstrated some foot faults in - in each of the investigations. Oh, this - this investigation made this mistake, this other investigation made the other mistake. Who cares? I mean, you really think that that is a matter of - of significant moment for - for the country, that there was an isolated mistake in - in one and another of the investigations? Who cares?I was sitting in the gallery that day. When I heard this question I really wanted to stand up and yell, "E tu Antonin," but I knew that they would have squashed me like a grape if I did.
ML/NJ