“It turns out it was what I loved. Don’t do it if you don’t love it, it’s not the most exciting profession unless you love the process, you love words.”
— Antonin Scalia
“He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. It was my great good fortune to have known him as working colleague and treasured friend.”
— Ruth Bader Ginsburg
In his 30 years as a Supreme Court Justice, Antonin Scalia was a polarizing figure. Either revered or reviled depending on your political and legal persuasion, he was widely respected as a brilliant jurist, the most outspoken proponent of originalism, and a man with no limit to his sharp wit and outsized personality. His death last weekend at the age of 79 shocked the legal world.
It’s unusual, of course, to say that one is “shocked” by the death of a 79-year-old man, but there was no indication that Justice Scalia was ill and the implications of his death are incredibly huge. Those implications are practical, legal and political.
From a practical perspective, all of the cases that have been argued this term but not yet decided, and all that have yet to be argued, will now be decided by eight Justices. That’s because Scalia’s votes will not count unless a written opinion has already been issued, even if the Justices had met and determined who would vote to uphold or overturn those cases. If a vote on a case is now tied 4-4, it will result in an affirmation of the lower court decision, although the Supreme Court could elect to re-hear those cases next term (assuming, of course, that they have nine Justices by then).
Several cases could be substantially affected in this manner. The most likely is Friedrichs v. California Teachers Association, a case that dealt with union dues. It appeared from oral arguments that the teachers’ union were likely to lose in a 5-4 decision. With Scalia’s vote gone, the case would be 4-4 and the lower court decision, which ruled in favor of the union, would be upheld.
The Affordable Care Act could also be affected, with Zubik v. Burwell considering the issue of accommodations for religious organizations otherwise required to provide contraception coverage. A 4-4 vote here would be a mixed bag as the lower court’s differed on the issue. Scalia’s death could have had a major impact in an affirmative action case, Fisher v. University of Texas, but Justice Elena Kagan has recused herself as she was involved in the matter as Solicitor General. Thus, this case will now be decided by seven Justices.
From a political perspective, the timing — in the middle of a presidential election — will make the confirmation process for a potential successor an incredibly difficult one. Republican leaders in the Senate have said they will not vote on a nominee. The president has said he intends to make a nomination. Much analysis has already been made of their claims and, as this column is legal, not political, that discussion can remain elsewhere.
From a legal perspective, the death of a sitting Justice is Earth-shattering. When a Justice retires, they typically do so during the term of a president of the same political party as the one who appointed them. But when, as here, a Justice dies during the term of a president of the opposite political party of the one who appointed them, the philosophical slant of the court can shift tremendously.
By 1946, when Harry Truman’s nomination of Fred Vinson to be Chief Justice was approved by the Senate, the High Court was composed of nine Justices appointed by Franklin D. Roosevelt or Truman, both Democratic presidents. By the time Dwight Eisenhower left office eight years later, his five appointments had shifted that balance. After a brief flip during John F. Kennedy’s presidency, the makeup reversed under Richard Nixon and, since 1970, the High Court has been made up of a majority of Justices appointed by Republican presidents.
The political affiliation of the president does not directly relate to the voting pattern of the Justice, but certainly presidents appoint Justices based on their decision history and their known legal philosophy. Considering the number of 5-4 votes on issues from gun rights to abortion to campaign finance to gay rights to free speech to voting rights and on and on, Justice Scalia’s death will have an impact on American law and the rights of individual Americans for generations to come. Regardless of your political persuasion, it simply cannot be overstated how incredibly momentous is the occasion of his death.
A lover of opera and good food (pursuits he shared with his close friend, Justice Ginsburg) and an avid hunter (a pursuit he introduced to Justice Kagan), Antonin Scalia was father to nine and grandfather to 28. His body will lie in state at the Supreme Court before a Catholic funeral mass on Sunday. Flags at the Supreme Court will be at half-staff for 30 days and his seat and the doorways of the High Court will be draped with black wool crepe, a tradition dating back nearly 150 years.
