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2016 Election

The Passing of Antonin Scalia


Antonin Scalia died yesterday of natural causes in his Texas home, adding an explosive new dimension to an already tumultuous election year. Whether or not President Obama will be able to vet and nominate a candidate and whether the Senate will confirm them is very much open to doubt; but the debate over a replacement will surely become a major campaign issue. It already has. In death, as in life, Mr. Scalia does not fail to rock the boat.


Justice Scalia was never one to shy away from controversy; indeed he seemed to thrive on it. In his 30 years of service on the Court, it was his brilliantly witty and usually scathing minority dissents that seemed to provoke his highest efforts and greatest pride. He was the longest serving member of the present couCrt, having been nominated by President Reagan and sworn in on the 26th of September, 1986; and probably the most conservative. In his long career, Mr. Scalia repeatedly demonstrated himself to be a constitutional textualist and originalist; arguing against interpretations of our founding charter that are not directly in the words of that document and seeking for their meaning in the context of the time of their writing. He was also noted for his upholding of individual rights and his opposition to abortion and laws that discriminate based on race, including Affirmative Action.

Scalia was recognized as one of the most brilliant minds to sit on the bench in modern times and was the subject of more law review articles than any of his 8 colleagues. Even his opponents found his arguments to be powerful, if sometimes overly emotional. Slate writer Conor Clarke said of Scalia’s opinions:

“His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.”

Justice Scalia served as a focal point for conservative opinion and helped shape it in many ways over the decades. He leaves a strong legacy not only from the many Supreme Court decisions he helped shape, as an early and prominent member of the Federalist Society, and also among law students. I have been very critical of his opinions, especially regarding social issues like protection of LGBT rights and the authority of Congress to uphold Affirmative Action and oversight of the Equal Rights Act. I have agreed with him on other cases involving separation of powers, such as his dissenting opinion in Clinton v. City of New York; his interpretation of the Second Amendment in District of Columbia v. Heller; and his belief that there was no constitutional right to abortion, as expressed in his dissenting opinion in Planned Parenthood v. Casey. Whether or not you agreed with Justice Scalia’s opinions, it would be impossible to accuse him of lacking conviction or bowing to expediency.

All the more reason for my puzzlement and disappointment in some of his last cases:

  • Justice Scalia strongly supported the 5-4 opinion of the Court in Citizens United v. Federal Electoral Commission, which might not be surprising from a point of view of his support for individual rights and a broad interpretation of the First Amendment; but the extension of this ruling to corporations and other legal entities seems to fly in the face of his textualist interpretation of the Constitution. You can search that august document front-and-back and you will not find one word or mention of “company” or “corporation”, only many references to “the people”. It therefore seems an inexplicable contradiction for someone who claims to be an “originalist” – no humanist, rationalist Founder could possibly have written a Constitution based on classical principles that included joint stock and limited liability companies.
  • In Fisher v. University of Texas, which has not yet been decided, Scalia’s opinion seemed certain to favor the defendant, which would have been consistent with his opposition to affirmative action. However, his comments from the bench, suggesting that minority students might belong in “less advanced schools” is not only highly offensive and inflammatory, but would seem to contradict the entire basis of his position against affirmative action:
    “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”

Perhaps there was no contradiction; Scalia was never a man to exude any self-doubt, at least not publicly. But the passing of the Justice leaves a critical hole in the bench at a time that the Supreme Court is in full swing, hearing oral arguments on six important cases:

  1. Friedrichs v. California Teachers Association pits Rebecca Friedrichs against the largest public sector union in the country, threatening what little is left of the labor movement in America;
  2. Evenwell v. Abbott and Harris v. Arizona Independent Redistricting are unusual cases featuring challenges against the redrawing of certain legislative districts. For over 200 years, the Supreme Court has avoided taking on gerrymandering, viewing redistricting as a purely political rather than legal issue. These cases may set important legal precedents that would have major repercussions on one of the oldest and most corrupt political fixes in America;
  3. Women’s Whole Health v. Hellerstedt and Zubik v. Burwell are two cases involving women’s reproductive rights. The former deals with a restrictive Texas abortion law which has forced the closure of many clinics in that state, while the latter is a case of religious organizations protesting the need to request an exemption on the mandatory provision of contraceptives in the Affordable Care Act;
  4. US v. Texas is a challenge to the use of President Obama’s executive authority to block the deportation of approximately 5.5 million illegal immigrants, especially children.

In all of these cases, a split Court would result in the lower court’s decision standing. On the other hand, no precedent would be set by the decision, leading to more challenges in the future.

This is an unfortunate, but unavoidable consequence of Scalia’s death. These cases will be heard and decided before any replacement could be sworn in, even under the best of circumstances. America is not passing through the best of circumstances, unfortunately. Senate Majority leader Mitch McConnell and GOP candidate Ted Cruz have both called on the President to refrain from nominating anyone before the election so that “the American people may make their choice.” Even without such magnanimity on the part of Mr. Obama, there is almost no possibility of selecting a new justice before the end of the year; just the vetting process by the Justice Department is likely to take months. The Senate will have its summer recess and then close doors in October before the election, so Senator McConnell will not have to struggle long or hard to find excuses not to confirm the President’s choice, if they even pass through the Senate Judiciary Committee’s review in time.

Yet the President should certainly make a recommendation. His powers and his duties extend until the day he leaves office; to say that he should refrain from executing these is ludicrous. John Adams famously “stuffed the benches”[1] of the newly reorganized circuit and district courts with appointments just 19 days before he left office. Furthermore, it would be a gross dereliction for the President to simply acquiesce to this threat: the Supreme Court is the one branch of government that continues to operate with the support and respect of the American people. It will now be impotent until a new justice is appointed. Should the President wait, or should the Congress choose to ignore any nomination until a new Administration takes office in February 2017, the Court will be hamstrung for at least 18 months: a year until the new President sits in the Oval Office and another six months before they select their own nominee, vet them, and put them through the grueling selection process. Even a Republican President will not find it easy to “fast track” a candidate.

Arguing that the American people should have their voices heard in the selection of a new justice is simply disingenuous: on the one hand, if that had been the Founders’ intent, they would have made a provision for the direct election of the Supreme Court, which they did not. And on the other hand, the people have had their voices heard: in the 2012 and 2014 elections that returned a President and a Congress that represent the people. These representatives should now fulfill their duties rather than abdicate them and pass the buck, which is what Congress has been doing for years now.

As Senator Elizabeth Warren put it, more aptly than I ever could:

“Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says ‘…except when there’s a year left in the term of a Democratic President.’”

I can only hope that Antonin Scalia, stalwart defender of a literal interpretation of our Founding Charter, would have agreed with that sentiment.


Sources and Notes

[1] These were known as “Midnight Judges” appointed after the enactment of the Judiciary Act of 1801.

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“Our obligations to our country never cease but with our lives.“

John Adams


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