A Death of Political Consequence: the Legacy of Justice Antonin Scalia

By Connie Kwong

When news broke out on Saturday about the death of Supreme Court Justice Antonin Scalia, a wild card was thrown into the American political atmosphere. In what has already been a dramatic election year, Scalia’s passing created an unforeseen vacancy in the last few months of the Court’s current term, which coincidentally falls during the last leg of a lame-duck president’s tenure.

Scalia’s death means that the Court has lost its slight conservative majority. While moderate Republican Anthony Kennedy was often the swing vote on close 5-4 Court decisions, Scalia usually sided with fellow conservatives Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. But since President Obama is a Democrat, he will most likely nominate a Democrat to fill the spot, joining liberals Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan. As a result, the Court’s ideological balance would have a slight liberal tilt. If a nominee isn’t confirmed before Obama leaves office, the Supreme Court will likely have to go through two terms shorthanded, because the next appointee probably wouldn’t be confirmed until the next term is almost over. As a result, the most contentious cases would result in either a 4-4 tie or a 5-3 decision. In a tie, the Court simply affirms the lower court’s decision, as if the Court never heard the case at all.

Shortly after the announcement of the death, Republican Senate Majority Leader Mitch McConnell announced that the Senate should not confirm any replacement nominee until after the 2016 election.

With the exception of former Florida governor Jeb Bush, every Republican presidential candidate in Saturday’s debate agreed with Senator McConnell, saying that either Obama should defer to the next president, or the Senate should block any pick. Texas Senator Ted Cruz even ran a campaign ad warning, "Life, marriage, religious liberty, the Second Amendment. We're just one Supreme Court justice away from losing them all.”

Meanwhile, Democratic presidential candidates former Secretary of State Hillary Clinton and Vermont Senator Bernie Sanders joined Bush in voicing their support for Obama’s constitutionally-backed right to nominate a new justice. In a press conference, the president himself announced, “I plan to fulfill my constitutional responsibility to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a full hearing and timely vote."

Indeed, the response to Scalia’s death has been every bit as fiery and polemicizing as the reputation that he gained throughout his famed legal career. When the Yale Law-educated Scalia became the first Italian-American to serve on the nation’s highest court in 1986, he positioned himself against the words of his more liberal colleague, Associate Justice William Brennan. Just the year before, Brennan declared, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.” By contrast, Scalia chose to apply a strict, textual approach to understanding the Constitution, otherwise known as the judicial philosophy of originalism.

In its practical function, originalism opposes the notion of a “living Constitution,” instead viewing the Constitution’s meaning as fixed at the time of enactment. The main consequence of originalist interpretation is that it often concludes that social or legal problems do not merit solutions in which “new rights” (rights that are not explicitly outlined in the Constitution, such as gay marriage and abortion) are protected. To date, Clarence Thomas is the only other originalist that has served on the Supreme Court. Scalia himself even once joked, “You could fire a grapefruit out of a cannon over the best law schools in the country...and not hit an originalist.” But thanks to Scalia, originalism cannot be merely dismissed as a fringe legal theory. And it’s what prompted constitutional conservatives to laud him and liberals to detest him.

Aside from his polarizing theories, Scalia also made a name for himself for his behavior during oral arguments. Compared to other justices, Scalia made more comments and asked more questions during lawyers’ oral arguments, and was infamous for sparring aggressively with lawyers to test their wits. Of course, the most well known aspect of his legacy was the colorful, often aggravating, and sometimes humorous language in the judicial opinions that he authored. We can look at snippets from just a few of his dissenting opinions to see how his writing, peppered with a mix of originalism and social conservatism, consequently prompted anger, support, laughs, eye rolls, or groans from people all across the political spectrum:

• Regarding last June’s landmark ruling upholding gay marriage in Obergefell v. Hodges: “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think that Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."
• Regarding the court’s 2012 ruling that Arizona’s undocumented immigration policy was unconstitutional because it sought to usurp the federal government’s authority in Arizona v. United States: “We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude.”
• Regarding the court’s 1996 ruling in United States v. Virginia that the Virginia Military Institute’s practice of only admitting men was unconstitutional, he was the sole dissenter: “If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist.”
• Regarding the 2014 ruling to uphold tax credits under the Affordable Care Act in King v. Burwell, “This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.”

Evidently, there are ample grounds to argue that Scalia’s jurisprudence made him an enemy of social progressivism. But it’s much more difficult to pinpoint him as a pure ideological demagogue. Despite being a lifelong conservative, Scalia hired a liberal legal clerk every year to have someone to spar with intellectually. Likewise, David Axelrod, previously Senior Advisor to Obama, recalls that after former Associate Justice David Souter retired from the bench, Scalia approached him with the hope that the president would nominate the liberal Elena Kagan. And of course, Scalia’s famous friendship with Ruth Bader Ginsburg, his ideological opponent, was certainly a testament to the importance of being able to work with people with different opinions. In a tribute to her friend, Ginsburg wrote,

“We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion.”

Regardless of whether one agreed with Scalia or not, it’s impossible to deny that the man had a voice and knew how to use it. If Scalia’s death comes with the political consequences that the presidential candidates and media alike have bestowed on it, perhaps we’re best off remembering that his originalism stemmed from valid concerns and skepticisms about the power that the Court could (or should not) exert in the delicate order of checks and balances. Indeed, he once said in a speech to University of Chicago law students,

“If the Constitution is an empty bottle into which we pour whatever values—the evolving standards of decency of a maturing society—why in the world would you let it be filled by judges? Why you would want to leave these enormously important social questions to nine lawyers with no constraints, I cannot fathom.”

  If the Supreme Court’s duty is to interpret the law and the “enormously important social questions” of our time, it goes without saying that whoever makes the laws cares a great deal about Scalia’s successor – or, in other words, their legal ideology. So it’s perhaps an unintended consequence of the Constitution that the Supreme Court is so politicized in this day and age, and Scalia seems to have recognized that. Whether such a system and its implications are moral or not deserves its own separate discussion. Yet, I’d imagine that Scalia would likely scoff at Senator Cruz’s recently voiced intent to “make 2016 a referendum on the Supreme Court” with some sort of retort that the mechanics of the Constitution and the election process make that impossible. Given the divisive nature of the current American government, the confirmation process for Obama’s next pick will probably be lengthier and more contentious than his previous appointees, Kagan and Sotomayor - both of whom had relatively quick confirmation processes. Whoever joins the other eight on the bench will inevitably impact the Court’s ideological makeup. More importantly, though, they’ll have big shoes to fill by inheriting the spot of one of history’s most ardent and outspoken advocates of the Constitution.