Weekend Reading: Scott Lemieux on How Nino Scalia Tried to Turn Jurisprudence into Partisan Professional Wrestling
When Antonin Scalia was nominated to the US supreme court by President Ronald Reagan in 1986, the first Italian-American to serve on the Court was unanimously confirmed by the Senate. It may well be a year – or several – before the Senate confirm anybody to replace Scalia, who died on Saturday at the age of 79. But that vote will almost assuredly not be unanimous, regardless of who the eventual nominee is: the politics of US supreme court appointments have become as polarized as the rest of American politics.
And Scalia himself played a significant role in that very polarization.
Scalia’s legacy will be extensively celebrated by conservatives – Marco Rubio spoke for orthodox Republican opinion when he called Scalia one of the greatest justices in US supreme court history at Saturday’s Republican debate – and derided by liberals, many of whom wasted little time celebrating his demise and speculating how his absence on the court could affect future cases.
But what few political commentators note is that the foundation of his legal and political legacy does not so much stem from his majority opinions: landmark opinions, after all, tend to be written by either the chief justice or by the swing voters, like Justice Anthony Kennedy, and Scalia was neither. He certainly wrote numerous important opinions for the court (most notably the first opinion to find that the Second Amendment protected an individual right to bear arms in DC v Heller), but his reputation was largely based on his dissents and his remarks off the bench.
More than most US supreme court justices, Scalia often wrote to be quoted by a general audience – and that style was a mixed blessing for him. Scalia was capable of very fine legal writing but, particularly as he aged, his trademark blistering zingers were too often made to mask poorly crafted arguments. (In a 2013 interview, Scalia acknowledged his own concerns about his more recent opinions: ‘You always wonder whether you’re losing your grip and whether your current opinions are not as good as your old ones.’)
Scalia’s style of late reflected a justice who both strongly influenced the contemporary conservative movement and in turn was heavily influenced by it. At oral argument, he was capable of both devastating arguments and of sounding like a second-string conservative talk show host. But, at his best, Scalia defended originalism and textualism with a style and wit that could be recognized even by those who fundamentally disagreed with him.
In his first decade on the court, Scalia even won some grudging admiration from liberals. Perhaps the high point of his intellectual influence across party lines was represented by his Tanner lectures at Princeton: they were published as a widely discussed book, complete with respectful response essays from prominent liberal scholars like Robert Dworkin and Laurence Tribe.
And it’s true that Scalia was not a strict Republican party-liner: there were some cases in which he was willing to make common cause with liberal justices out of principle. In one dissent, he (correctly) characterized the mandatory drug testing of Border Patrol officers as ‘a kind of immolation of privacy and human dignity in symbolic opposition to drug use’. He wrote a brilliant dissent, joined by Justice John Paul Stevens, upholding the habeas corpus rights of American citizens accused of terrorist activities. And in some 4th and 6th Amendment cases, he regularly voted in a civil libertarian direction.
Still, these cases were the exception rather than the rule as his tenure wore on, and Scalia increasingly became a partisan lightning rod in court circles and in political circles beyond the court.
No discussion of Scalia’s legacy, for instance, can ignore the 2000 decision Bush v Gore, in which the court issued an essentially lawless decision awarding the presidency to the Republican candidate. Scalia did not write the opinion of the Court, but he wrote the more nakedly partisan opinion that preceded it and has defended it aggressively defended it in public ever since.
Bush v Gore is an extreme example but, despite Scalia’s self-presentation as America’s Last Honest Judge, Scalia had a way of ignoring his self-described legal principles if they conflicted with cherished policy goals. To take one particularly critical example, the joint dissent to the 2012 US supreme court opinion largely upholding the Affordable Care Act co-authored by Scalia was so flagrantly inconsistent with Scalia’s previous jurisprudence that Justice Ruth Bader Ginsburg was able to quote his previous opinions at length in her concurrence.
More importantly to some is that, had Scalia’s dissents ultimately shaped America, women would not have reproductive rights, the federal government could not effectively regulate health care, LGBT people would not have the right engage in sexual intercourse without fear of arrest – let alone alone the right to marry – and states could single them out for legal disabilities. Women could be excluded from state educational institutions, public schools could teach creationism in science classes and prisoners could be assaulted by prison guards. And, in large part because of Scalia, in America today, the Voting Rights Act has been gutted, the rights of employees and consumers have been curtailed, Brown v Board is more likely to be used to stop integration than to promote it and moneyed interests increasingly dominate elections.
But however one evaluates his legacy, Scalia’s untimely death creates a huge political issue that could well become a constitutional crisis. Senate Majority Leader Mitch McConnell has already made it clear that the Senate will not confirm anyone President Obama nominates to replace Scalia. That means, for a least a year, the US supreme court will almost certainly operate with 8 members and, in cases of a 4-4 split, lower court opinions will stand, leading to escalating uncertainty about the state of the law.
If the 2016 elections result in the White House and Senate being held by the same party, this logjam will probably be broken fairly quickly. Attempts by a Senate minority to serially filibuster nominees would almost certainly result in the filibuster being eliminated (as it already has been for all other federal judicial appointments). But if the 2016 elections result in Hillary Clinton or Bernie Sanders facing a Republican Senate – as currently seems likely – all bets are off.
There is no precedent for the Senate simply refusing to allow the president to fill a supreme court vacancy, but the current partisan climate a new precedent might well be created. And whether political pressure will compel the Senate to approve some presidential nominee is unclear.
The politics of replacing Scalia are difficult precisely because the consequences are so important. Depending on the results of the 2016 presidential and senatorial elections, the next person allowed to vote on the US supreme court will be similar to either Elena Kagan or John Roberts – and the stakes for the reproductive freedom of women, climate change, voting rights, civil rights, the ability of the federal government to regulate the economy and civil liberties can hardly be overstated.
In a very real sense, the 2016 elections will ultimately result in the confirmation or repudiation of the jurisprudence for which Justice Scalia most prominently advocated. But he won’t be here to see it.