With the passing today of Associate Justice Antonin Scalia, the Supreme Court is set for major changes. For one, the 79 year old justice will likely be replaced by one several decades his junior – thus, starting the process of rebalancing the High Court for a generation. Second, if President Obama, or his possible Democratic successor, picks Scalia’s replacement, it would be the first time since the administration of Lyndon Johnson that the Supreme Court might enjoy an outright liberal majority.
In his seven years in office, President Obama has had the opportunity to name only two justices – Sonia Sotomayor and Elena Kagan – but those appointments replaced two retiring liberals – David Souter and John Paul Stevens, respectively – maintaining the ideological status quo on the Court. And that status quo was quite conservative.
Before retiring, Justice John Paul Stevens noted that since 1971, every one of the justices appointed to the Court was more conservative than the justice who was replaced. Indeed, we can credit (or blame) the two Bush presidencies for the current conservative majority. George H.W. Bush’s replacement of civil rights icon Thurgood Marshall with arch conservative Clarence Thomas – followed by George W. Bush’s replacement of moderate Sandra Day O’Connor with Samuel Alito (known as “Scalito”) cemented a 31-year march rightward.
It is a mark of how conservative the Court has become that the few major liberal victories in the current era of the Roberts court – most especially on gay rights – have depended on the swing vote of Anthony Kennedy, a moderate conservative with libertarian leanings, or in the case of ObamaCare, of Chief Justice John Roberts, a conservative with pragmatic leanings.
Scalia came of age during, and in contradistinction to, the grand era of the Warren court, which desegregated the public schools (Brown v. Board of Education), modernized criminal justice (Miranda v. Arizona and Gideon v. Wainwright) and established a right of privacy (Griswold v. Connecticut, which formed the intellectual foundation for abortion rights in the later case of Roe v. Wade). Justice Scalia was among the loudest voices in his generation for the conservative jurisprudence of originalism. Originalism is a theory of constitutional interpretation that seeks to divine the original meaning of the Constitution from the text itself or where unclear, from what the public would have understood those words to mean at the time of ratification. This means the Constitution was frozen in meaning as of 1789 (at its original ratification), 1791 (for the Bill of Rights) and between 1865 and 1870 (for the Civil War Amendments).
Or as Scalia famously, and infinitely more colorfully, explained in a 2013 book promotion tour,
“[The Constitution is] not a living document. It’s dead, dead, dead.”
Conceptually, Scalia meant his originalism to be a constraint on the Court’s ability to interpret the Constitution. His jurisprudence developed to serve as a brake on what he perceived as Warren era excesses and to roll back the New Deal era that gave expanded powers to the federal government under modern views of the Commerce and Due Process Clauses. Fundamentally, Scalia’s originalism was a frontal attack on the principle of judicial review established by our first Chief Justice, John Marshall, in Marbury v. Madison, which permits the Supreme Court to make final, binding precedent for the nation and “say what the law is.” Judicial review is based on the English common law system of justice that formed the very basis of the Framer’s understanding of the words they used in drafting the Constitution. And judicial review is a system of justice that respects judicial precedent but allows each generation of jurists add to the common law as is required to modernize the spirit of the laws and apply them to current conditions.
Justice Scalia will be remembered for his blistering dissents, in which he stood athwart the Court’s historic application of the principles of the Equal Protection to gays and lesbians in invalidating anti-sodomy laws and establishing marriage equality – because no such rights would have been recognized almost 150 years ago at the time of the ratification of the Fourteenth Amendment. But ironically, Justice Scalia will also be most remembered for his majority decision in District of Columbia v. Heller that ignored originalism and found, for the first time, an individual right to bear arms in the text of the Second Amendment that only expressly provides such a right to “well regulated” state militias.
The immediate impact of his death will be felt most significantly in the balance of the current Supreme Court term. His absence now deprives conservatives of a majority in what otherwise might have been 5-4 decisions decimating public employee unions, abrogating “one man, one vote” in Congressional redistricting (to the detriment of Democrats for the foreseeable future) and restricting the scope of the contraception mandate under the Affordable Care Act.
Just last week, a majority of the Court, including Scalia, issued an almost unprecedented stay of the EPA’s new regulations to curb emission from coal-fired power plants – which court action many believe will undermine the recent Paris Agreement to tackle climate change on a global basis. The case now goes back to the Court of Appeals, where two of the three judges on the panel hearing the case are Democratic appointments. If they expedite the case and rule in favor of the Administration, the Supreme Court now lacks a fifth vote to overrule them. And a 4-4 tie affirms the lower court ruling.
President Obama spoke to the nation this evening, saying that he will fulfill his constitutional duty to nominate a replacement justice. Senate Republicans are vowing to block a vote on any such replacement until the next president takes office. It is odd that the passing of Scalia, who vociferously advocated but did not always practice judicial restraint, now frames the current presidential election.