There is no doubt that the author of this obituary is schooled in the Scalia patois, in fact she/he is adept at sounding the notes of witless bulling insult that is the hallmark of that Scalia style!
But was Scalia an ‘Originalist’ Or as Scalia described himself as a ‘faint-hearted originalist’? Here is a partial answer provided by Bruce Allen Murphy,the Fred Morgan Kirby Professor of Civil Rights at Lafayette College in Easton, Pennsylvania.
‘When I teach about the First Amendment Free Exercise of Religion at Lafayette College, which used to occupy a routine pair of classes, I now wheel into the classroom a large white board that will occupy us for weeks, filled with all of the exceptions that the Court has created here restoring, in piecemeal fashion, the pre-Scalia, 1990 decision, world. I explain what has become the “Swiss Cheesing” of the First Amendment’s Free Exercise clause, allowing, among others, for claims to be considered for exceptions for federal prisoners and others being held in government institutions, for a religious group in Hialeah, Florida seeking to sacrifice animals in religious ceremonies, and for a small religious group seeking to drink ceremonial hallucinogenic tea from the Amazon. The string of exceptions to Scalia’s Smith rule has created so many holes that there is almost no cheese left. After the Hobby Lobby decision, I will have to make one more change to the top of my board, one which risks doubling the number of exceptions, adding next to the words “person’s Free Exercise of Religion rights,” the phrase “and closely-held corporations’ religious rights” Even though the majority in Hobby Lobby has further limited Scalia’s Smith case holding, since that result comports with his pro-religious accommodation, pro-corporation constitutional rights, viewpoint, he silently votes with them. While Scalia likes to say in his public speeches that his version of the Constitution is “Dead. Dead. Dead,” once more his reading of Founding era history to construct his originalist interpretation of the Constitution is very much an evolving work in progress.’- See more at: http://historynewsnetwork.org/article/156300#sthash.BWyZ4mgK.dpuf
‘Critics of affirmative action, (including the court’s only black justice, Clarence Thomas,) have long argued that the policy backfires on black students, claiming that placing unprepared students in elite academic settings is setting them up for failure. Still, Scalia drew “muted gasps in the courtroom” for his indelicate comments at the end of oral argument, according to The New York Times. From the transcript:
There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.
I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.
One could defend Scalia by pointing out that justices often float devil’s advocate–type statements during an oral argument in order to test the lawyer’s arguments, and that the only opinion that matters is the one they eventually write down. But even Lyle Denniston of SCOTUSBlog, an elite law reporter who knows a thing or two about not jumping the gun when analyzing the court, found Scalia’s statement “quite clumsy.”