One year ago today, the world lost Justice Antonin Scalia. The late Justice Scalia was a giant. His sharp, witty, and brash dissents will influence law students for generations. Whether he was pointing out the wolf that came as a wolf or warning you of jiggery-pokery, he was always able to keep readers engaged. Certainly, some claim that Justice Scalia is overrated. Pure applesauce.
Today, many will take time to reflect on Justice Scalia’s legacy. On the first anniversary of his death, I just want to share my favorite “Scaliaism”—his opening from his concurrence in Schuette v. BAMN:
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception. It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.
Even taking this Court’s sorry line of race-based admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits?
Classic.