There has been much written since Antonin Scalia passed away unexpectedly last month at the age of 79, and it's hard to underemphasize what his death signifies.
It's also interesting to read what one of his former students wrote about her experience studying with him in law school way back when in 1986:
I first met Justice Antonin Scalia when I was a law student at the University of Chicago, where he was a law professor. The first course I took from him was Constitutional Law I, which at Chicago was a second-year course focused exclusively on the structural provisions of the Constitution.
My sharpest memory of the class is how he explained Marbury v. Madison. At least since the second half of the twentieth century, law professors have taught Marbury as the case where Chief Justice John Marshall, through a clever jiu jitsu move, avoided a confrontation with the president by "discovering" (read "inventing") a power of the Supreme Court to strike down an act of Congress. This power, the professoriate claimed, was nowhere to be found in the text of the Constitution. It was the first act of the Court "shaping" the Constitution to fit our needs.
So here you have him basically repudiating what has become a rock-solid convention of the Supreme Court - Marbury v. Madison.
And here you have him refusing to discuss his approach to Marbury during his confirmation hearing:
The CHAIRMAN. Judge Scalia, the Supreme Court's decision in Marbury v. Madison is viewed as the basis of the Supreme Court's authority to interpret the Constitution and issue decisions which are binding on both the executive and legislative branches. Do you agree that Marbury requires the President and the Congress to always adhere to the Court's interpretation of the Constitution?
Judge SCALIA. Well, Marbury is of course one of the great pillars of American law. It is the beginning of the Supreme Court as the interpreter of the Constitution. I hesitate to answer, and indeed think I should not answer the precise question you ask -- do I agree that Marbury v. Madison means that in no instance can either of the other branches call into question the action of the Supreme Court.
As I say, Marbury v. Madison is one of the pillars of the Constitution. To the extent that you think a nominee would be so foolish, or so extreme as to kick over one of the pillars of the Constitution, I suppose you should not confirm him. But I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury.Madison.
If you could conclude from anything I have written, or anything I have said, that I would ignore Marbury v. Madison, I would too be in trouble, without your asking me specifically my views on Marbury v. Madison.
You'd think that both Republicans and Democrats could agree that without a commitment to Marbury, you have no effective Supreme Court (or at least an institution that actually serves as a legitimate check on Congress and the President). But here we have a nominee who failed to tell the panel that he didn't agree in the legitimacy of Marbury.
It makes you wonder if he would have actually been confirmed had they known about his true feelings/teaching about Marbury.
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