Court Monitor

Justice Scalia's Last Words from the Bench

When Supreme Court Justice Scalia unexpectedly passed away at a remote hunting ranch on February 13th, he left us with a legacy rich in colorful writing. His best work was not in cobbling together majorities on the Court as liberal Justice William Brennan had done from the other side, but in tossing the literary equivalent of Molotov cocktails at incoherent liberal opinions. "I would hide my head in a bag," he wrote in dissent about how he would feel if he ever joined an opinion written as poorly as Obergefell v. Hodges, which created a new constitutional right to same-sex marriage. "The Supreme Court of the United States has descended . . . to the mystical aphorisms of the fortune cookie," he added there.

Justice Scalia's final opinion, a scathing dissent delivered on January 25, 2016, was in his vintage style. It featured startling sentences without verbs, dripping with sarcasm. In a case that overturned a life sentence without parole for the convicted murderer of a deputy sheriff, simply because the crime was committed by the murderer as a 17-year-old rather than as an 18-year-old adult, Justice Scalia's dissent ripped to shreds the Court's decision. "How wonderful. Federal and (like it or not) state judges are henceforth to resolve the knotty 'legal' question: whether a 17-year-old who murdered an innocent sheriff's deputy half a century ago was at the time of his trial 'incorrigible.'" Montgomery v. Louisiana, 136 S. Ct. 758 (2016).

"But have no fear," Justice Scalia continued in mockery of the Court's requiring consideration of parole for the murderer. "The majority does not seriously expect state and federal collateral-review tribunals to engage in this silliness, probing the evidence of 'incorrigibility' that existed decades ago when defendants were sentenced." Scalia then continued with a two-word sentence, and called the Court majority "devious." "Of course. This whole exercise . . . is just a devious way of eliminating life without parole for juvenile offenders."

Scalia built to a crescendo for his conclusion. He observed that the Court could have simply prohibited life without parole for juvenile offenders because, "as we know, the Court can decree anything, . . . but that would have been something of an embarrassment." The embarrassment would be the conflict with the reasoning in another judicially activist decision of the Court that ended capital punishment for any crime committed before the offender's 18th birthday because the punishment of a life sentence without parole is supposedly harsh enough. "How could the majority — in an opinion written by the very author of Roper — now say that punishment is also unconstitutional?" Scalia intoned rhetorically.

Scalia even tossed in a reference to the Godfather movie for emphasis: "And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply 'permitting juvenile homicide offenders to be considered for parole.'"

Justice Scalia's final two words from the bench summed up how the Court majority had abandoned reason to attain its supremacist goals: "Mission accomplished."