Saturday, February 13, 2016

Justice Antonin Scalia Dead

The Bear is saddened to learn of the passing of a giant of jurisprudence, Supreme Court Justice Antonin Scalia. He was an unapologetic Roman Catholic and conservative whom the left loved to hate.

We shall never again see the likes of Scalia's written court opinions. Erudite, compelling, witty, sometimes funny, and, in dissent, often scathing. The Bear is sure we will soon be seeing "best of" lists of his most entertaining writing.

Although he will be remembered as a conservative, his principled pragmatism sometimes made him an unexpected friend of the criminal defense bar.

In a line of sentencing cases beginning with Apprendi v. New Jersey (2000) and ending with United States v. Booker (2005), Scalia was with the majority that upended the notorious Federal Sentencing Guidelines. (The Bear can attest that that was an exciting and unsettled period in federal criminal practice!) The Supreme Court held that factors (other than prior convictions) that increased a sentence beyond the normal statutory range had to be proved to a jury beyond a reasonable doubt (or admitted by the defendant). Prior to Apprendi, judges could make those decisions.

For all practical purposes, that demolished federal sentencing (much to Sandra Day O'Connor's displeasure), as well as sentencing for states that used a similar scheme. In the end, the guidelines were simply made "advisory," but still, federal judges were unshackled to more easily depart from the guidelines and fashion appropriate sentences for individual defendants.

Many of Scalia's criminal defense decisions, rooted in the protections of the Constitution, are at odds with the caricature of him as a right-wing ideologue.

On the other hand, he was in favor of the death penalty, and said that if he thought his Church prohibited it he would have to resign his position.

The Bear would always read Scalia's opinion in a case first, not only because it was going to be the most entertaining, but because it was going to get to the constitutional heart of the matter.

There were rumors that Scalia belonged to Opus Dei. Members do not advertise that fact, but in any case it seems he was not.

We will never see another justice quite like Antonin Scalia. He will be missed, and not only because President Barack Obama will be appointing his replacement.


  1. I was very saddened by the news. Like you, I appreciated his wonderful writing -- and his unapologetic Catholicism.

    Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul, and the souls of all the faithful departed, through the great mercy of God, rest in peace. Amen.

  2. Devastating loss for our country.
    Praying for him and his family.

  3. Obama will nominate a
    a. sodomite
    b. woman
    c. woman of color
    d. minority
    e. Grand Slam by finding an extreme libs who is a combination of a-d.

    ABS is going with e

  4. I had the pleasure of seeing him once at a Red Mass in Stamford CT. One of his remarks that always made me chuckle, and I agreed with it, is the law is "deadening." Something to that effect. That the career is not all it is cracked up to be. Some days I must admit I agree.

    1. I never found being a criminal defense lawyer "deadening," at least outside of federal court. Occasionally soul-searing, and definitely crazy-making, but not deadening. A murder would always come along to pick me up.

  5. I'm on the civil side... not as lively.

    1. Thank you for doing that so the Bear did not have to. He didn't have the mind for it. If he could snuffle around bodily fluids he could grasp a case instinctively.

    2. Scalia raised his 9 children in the traditional Latin mass. One of his sons is a priest.

      Awfully convenient last minute death right before election year, don't ya think? Just sayin....

      Seattle kim

    3. A 79-year-old man dying in his bed hardly screams murder, if that's what you are insinuating. Now come on, lets be sensible and not give in to groundless speculation without a scintilla of evidence. Justice Scalia wouldn't have operated like that.

  6. This has a good summary of the events:

    The Justice of the Peace seemed very quick to declare (without even seeing his body) that his death was from "natural causes;" another Justice of the Peace said she would've ordered an autopsy. The county judge said his death certificate would say "myocardial infarction" (heart attack), and she pronounced him dead over the phone! The family hasn't requested an autopsy (yet), probably because if it did find foul play, they would be at risk. The host of the hunting trip declined to say who the other 35 guests were. Then Obama said he, and not the next U.S. President, will appoint Scalia's successor. This is all quite suspicious. Scalia is the 2nd Supreme Court justice to die before resigning in 60 years.

    Requiescat in pace.

    Seattle kim

    1. What would be suspicious is if there were any evidence of foul play. Death Certificates aren't always as trustworthy as you might imagine. His family dropping dead after requesting an autopsy would be suspicious. Therefore, if they are not satisfied with the story so far, they could ask for an autopsy without fear. However, if your speculation was true, do you really think Obama would have had his secret team of assassins operate in a way that left evidence behind? Why aren't you mentioning the pillow left over his head (supposedly). Why not go after one of the younger members on the conservative side, like Alito or Thomas? (Granted they didn't have the stature of Scalia, but they're likely to be around a lot longer anyway.) Why not kill all three? When you're dealing with men in their 60s and 70s, you know, it could happen.

      Please let's not get distracted from what we know -- a brilliant jurist and devout Catholic died in bed at the age of 79. Conspiracy theories without evidence drives down property values.

      No offense, Kim, but I just don't see why the death of a 79 year old man is so unexpected, and I think it would be sad if the story took a conspiratorial turn. My son is convinced Kurt Cobain didn't kill himself, and his evidence is a lot more compelling.

  7. Death at 79 is not unexpected---just the timing of it, and all the other circumstances listed above. He was a traditional Catholic so likely he won't be cremated, and therefore the cause of his death could be revisited later. If he is cremated, I would be rather surprised and wonder about that as well.

    Seattle Kim

  8. Also a lot easier to get away with killing Scalia rather tha Alito or Thomas, because everyone expects an old man to drop dead. Just food for thought.

    Seattle kim

    1. I think the chatter is more like junk food for junk thoughts.

      I think the rampant speculation is highly disrespectful to the family on a couple of levels.

      First, it's not the family raising questions. They reportedly elected for no autopsy, and have a lot more information than wingnut sites and combox pundits. It's rather insulting to the family and their judgment. They're a pretty bright bunch, and I suspect Scalia trained them well not to accept rubbish for arguments.

      Secondly, is it doing the family any good to have unsubstantiated rumors of murder swirling around at this time?

      I think not. But I do think it's a good time to buy futures in aluminum what with the spike in demand for hats.

    2. Many of the so-called suspicious things really aren't. Texas, like other jurisdictions allows an official to declare death without laying eyes on the body. Judge Cinderela Guevara was on her way to the ranch, but was turned back by a U.S. Marshall by phone. She relied on the Presidio County Sheriff on the scene in declaring death, which seems quite sensible.

      Likewise she relied on the Sheriff's determination that there was no foul play in not ordering an autopsy. Again, this seems sensible. One would expect the Sheriff of 23 years to have more expertise than Judge Guevara (ex-Army, first woman judge in county history).

      The Judge spoke with Scalia's personal physician. The Justice had just had an MRI of his shoulder. The doctor cited heart disease and other chronic ailments that rendered Justice Scalia "too weak for surgery" on his shoulder. That conversation, according to the Judge, made her feel confident that Scalia died of natural causes. After all, he was 79. That hardly screams bloody murder.

      If we accept the premise that Obama, or Masons, are some other evil group assassinated him, do we really believe they would have used a method that would have left a trace? We're talking the very best assassins for a mission like this. They would have no way of knowing whether there would be an autopsy or not. Unless the Judge and the Sheriff are in on the plot. (The Judge is a Democrat, and the Sheriff probably is, too. And they both have Hispanic last names. Coincidence?) Anyway, the whole autopsy issue is moot because the assassins would have made certain one would have revealed nothing.

      There was a report a pillow was over Justice Scalia's head. Did it look like a pillow that had been used to smother someone (which is the implication)? Why advertise an assassination by leaving a pillow while taking care to rearrange everything to eliminate any sign of a struggle? A pillow is an iffy method, anyway. It can leave signs, such as paleness around the nose and mouth, and cyanosis of the face. I don't think an expert assassin would risk that, or advertise that it was assassination by leaving the pillow that way.

      So what evidence is there? President Obama benefits because now he can appoint a Supreme Court Justice?

      Circulating an account without any evidence whatsoever is called making things up. Sadly, Justice Scalia will not be remembered for his brilliance and fidelity, but as the center of conspiracy theories. Justice Scalia Truthers. Great.


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