Ideas for Christmas Gifts
Antonin Scalia on law, faith, life well lived—and judicial confirmations
For those of you struggling to come up with ideas for last-minute Christmas gifts—or overdue Hanukkah gifts—this post is for you. I even include at the end an idea for a gift that is free.
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I’ll start off by proposing any—or all!—of the three collections of Justice Scalia’s writings that I had the privilege of co-editing, all three of which have received outstanding reviews. (I don’t receive royalties on any of the books, by the way, so I am not making a self-interested pitch.)
The first volume, published in 2017, is the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, a delightful collection of dozens of Justice Scalia’s speeches on topics as varied as the law, faith, virtue, pastimes, and heroes and friends. This volume features a touching foreword by Justice Ginsburg. It should be of general interest to all readers.
The second, published in 2018, is On Faith: Lessons from an American Believer. As the double meaning of the book’s subtitle suggests, On Faith collects Justice Scalia’s thoughts both about religious belief and about the place of religion in American public life. The collection includes speeches, excerpts from some of Justice Scalia’s Supreme Court opinions, and reflections on his faith by his friends, colleagues, law clerks, and family. On Faith also features a beautiful foreword by Justice Thomas, a moving introduction by Fr. Paul Scalia, and Fr. Scalia’s powerful homily at his father’s funeral Mass.
The third, published in 2020, is The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The volume, which includes a wonderful foreword by Justice Kagan, has been hailed as “an extraordinary collection of Justice Scalia’s legal writings—the best introduction to his legal thought,” “fantastic,” “an education in Americanism, and in the distinct and central place that the law and the Constitution have in the life of our republic,” and “the best one-volume compendium of the Justice’s erudition and wit.” Every lawyer, every law student, and everyone interested in the American legal system should enjoy this book.
There is also a fourth Scalia volume in Hebrew that has been recently published and that consists of excerpts drawn from Scalia Speaks and The Essential Scalia.
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Perhaps of special interest to Confirmation Tales readers, Scalia Speaks includes a speech that Justice Scalia gave in February 2003 on “The Crisis in Judicial Appointments.” The judicial-confirmation wars have intensified so much since then—beginning with the campaign of filibusters that Senate Democrats launched against George W. Bush’s appellate nominees barely a month later—that it might seem surprising that Scalia labeled the situation a “crisis.”
In his speech, Scalia explains at length his view that “the appointment of judges has become a significant political issue in national elections, and Senate confirmation of judges has become a politically charged enterprise, because courts have taken upon themselves the making of a vast number (indeed, an infinite number) of decisions that are properly of a political rather than a juridical nature.” From the conclusion of his speech:
You will have misunderstood what I have said today if you interpret it as an unqualified criticism of the politicization of the judicial appointment process. I assuredly do not like that politicization, but I think that it is the inevitable consequence of judicial overreaching—and that it is preferable to the alternative of rule by a judicial aristocracy. What we have been witnessing in the past few decades is simply application of the political check upon the courts that I described at the outset of this lecture. The courts have invited this application because their new construct of a “living Constitution” involves them regularly in the business, not of law but of politics—of deciding not what rights have been established in the Constitution, but what rights ought to be there.
What I urge, then, is the return of the courts to the traditional role that, until the last third of the 20th century, made the application of outcome-based political accountability in the appointments process the rare exception rather than the rule. The abandonment, that is, of the notion of an “evolving” Constitution, and of the doctrine of “substantive due process.” Unless that occurs, I fear that the independent and nonpolitical nature of the federal judiciary will be permanently impaired.
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Happy (belated) Hanukkah and a blessed Christmas to all who celebrate!
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