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Saturday, February 13, 2016

Justice Scalia

Justice Scalia was a giant among giants.  It is not an exaggeration to say he was the most influential Supreme Court Justice in the past 30 years.  Whether you agreed with him or not, his importance cannot be underestimated.  

Because there have been various questions swirling around the implications of his death, I thought I would provide some answers here.

1.  What does this mean for current cases pending before the Court? The Court is now an 8-member institution.  (Tom Goldstein of SCOTUSBlog provides some thoughts on this point here.)  Even if a decision was about to be issued, it no longer has Justice Scalia's vote.  This will not make a difference for many cases, which were not going to come down 5-4.  But it could make a BIG difference in the BIG cases this term, such as Evenwel (one-person, one-vote), Friedrichs (union contributions), and U.S. v. Texas (immigration).  These cases are now, suddenly, a potential 4-4 split.  That would have the affect of affirming the lower court, without a controlling precedent from a majority. [Update: Tom Goldstein now thinks that these cases might be set for re-argument once there is a new Justice instead of having an affirmance by an equally divided Court.]  (Fisher, the affirmative action case, now has 7 Justices deciding it, as Justice Kagan is recused, so it could potentially come out 4-3, depending on Justice Kennedy's vote.)  For instance, if Justice Scalia was going to vote with the other conservatives in Evenwel, and require states to use only citizen-voting-age-population as the count for drawing district lines, now that case will be 4-4, which will change the outcome and affirm the lower court's decision allowing Texas to choose total population instead.

2.  What does this mean for a potential Obama appointee?  Senator Mitch McConnell has already said that he will not support the Senate considering any Obama appointee.  Senator Patrick Leahy has said that "It's only February," and that the Senate should do its work of confirming a new Justice.  So this will be a huge political battle.  In my view, regardless of the politics, Senator Leahy is correct here.  Senator McConnell said that "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."  I thought we all had a say in 2012 when we elected President Obama and in 2014 when we elected the current Senate.  

If Obama does want to nominate someone, he'll likely have to go with a moderate pick who can make it through the Republican Senate. Various names have already been suggested. (Here's another one to consider: I'm biased, because I clerked for him, but Judge Ed Prado on the 5th Circuit seems like a great pick!  He has been a U.S. attorney, district judge, court of appeals judge, and was appointed by two Republican Presidents.)

3.  What does this mean for the 2016 election?  This is huge.  Assuming President Obama is not able to nominate a new Justice, then the Supreme Court has just become the biggest issue in the presidential election campaign.  This is a good thing; the longest-lasting legacy of any President is the Justices (and lower court judges) that President appoints.  It's about time the American people begin paying attention.  This is not to say that Justice Scalia's passing is a good thing.  Not at all.  He was a great Justice, regardless of one's views of his opinions.  But the implications now are that the Supreme Court will loom large over the election, and that itself is a positive.

4.  What does this mean for the public's view of the Court? The Court prides itself on being the least political branch. Even though many decisions are seen as ideological (Bush v. Gore, Obergefell, etc.), the public's perception of the Court has generally remained fairly positive.  And the Justices vigorously try to protect that image -- that politics do not play into the Court's decisions.  So a negative of the Court becoming a big issue in the 2016 election is that the public's perception of the Court as apolitical will likely diminish.

5.  What does this mean for Justice Scalia's legacy? As I wrote earlier, Justice Scalia was a giant among giants.  We teach textualism and originalism much more meaningfully now because of his contributions.  He loved the law, and he made Court and its decisions so much better (not to mention so much more fun to read!).  (As someone who often disagreed with him, I know he was at least correct this term in Shapiro, when he wrote for a 9-0 Court in an election law case in which I wrote an amicus brief!)  This is truly a huge loss for our country.


Posted by Josh Douglas on February 13, 2016 at 07:12 PM | Permalink


Re point 5, there has been speculation elsewhere about potentially-endangered 5-4 cases (think Zelman, for example), but there's a now-endangered line of cases that hasn't been mentioned: Apprendi and its progeny, all 5-4 with Scalia in the majority. Assume that Obama makes an appointment and (dubitante) the Senate considers it with a non-zero chance of confirmation: The sentencing cases won't be on the President's mind, and they certainly won't be on the Senators' minds. Yes, the President is going to appoint a liberal, but those cases divided the liberals, and isn't there every chance that the President could unwittingly appoint a justice who sides with Breyer, providing a 5-4 majority for extirpating the whole line?

Posted by: Simon | Feb 15, 2016 12:05:00 PM

I don't consider it the mark of a great man or woman to ridicule and disrespect the opinions of others. I don't celebrate the death of anyone. But I do not believe Justice Scalia's passing is a loss to SCOTUS.

Posted by: Susan Rappoport | Feb 14, 2016 12:24:41 AM

Friendly neighborhood reminder: don't feed the trolls.

Posted by: YesterdayIKilledAMammoth | Feb 13, 2016 11:00:43 PM

I agree. Cent, you disgust me.

Posted by: AnonProf | Feb 13, 2016 9:39:53 PM

PaulB: When does the lame duck period start? It used to be after the election and before the inauguration. Is it now one in every four years that the court has to risk being short?

Posted by: John | Feb 13, 2016 9:29:02 PM

Here's a thought ... and RIP ... will any cases be held over to deal with 4-4 splits? Fisher should truly be disposed of some way now -- seven person court? come on. At least there, got to wait until you have a full Court.

smh. Shocking news.

Posted by: Joe | Feb 13, 2016 9:21:03 PM

I think Justice Scalia is somewhere now looking down on us with Amy Winehouse on his side. I wouldn't be surprised if the two of them were sinking Rehab together, perhaps with a bottle of cognac between them: https://www.youtube.com/watch?v=KUmZp8pR1uc.

Posted by: AnonProf | Feb 13, 2016 9:15:15 PM

On further recollection (and checking with Wikipedia), Eisenhower got around the unwillingness of Senate Democrats to hold a confirmation vote on Brennan by making a recess appointment. Brennan was an uncontroversial nominee in an era when appointing justices was rarely controversial. Republican political advisers thought it would help Ike to nominate an Irish Catholic.

Posted by: PaulB | Feb 13, 2016 8:58:45 PM

Justice Scalia himself would take issue with you calling me a disgusting person. I think he would say that my "conduct is reprehensible," as he stated in Romer. Or maybe I am a disgusting person. I'll gladly stip to that if there is more of a spotlight on his convenient textualism.

Posted by: Cent Rieker | Feb 13, 2016 8:58:20 PM

No chance the Republicans will allow a vote on a nominee this year unless Obama carelessly nominates such a liberal choice that they can vote him/her down. There is precedence for not allowing a lame duck President to pick a Supreme Court justice including 1968 (Fortas to CJ, Homer Throneberry to replace Fortas). In 1956 when Eisenhower was running for reelection and was universally expected to win, Senate Democrats refused to allow a vote on his nominee until after he did in fact win. That nominee, of course, was William Brennan.

Posted by: PaulB | Feb 13, 2016 8:47:48 PM

I think Senator Sanders got it right: "“My thoughts ... are with his family and his colleagues on the court who mourn his passing.” But I don't mourn, even a little, Scalia's absence from the Supreme Court. I disagree that Scalia was a giant among giants, and agree that he was, often enough, intellectually dishonest.

Posted by: Lawrence Stanley | Feb 13, 2016 8:40:11 PM

Cent, you are a disgusting person. Celebrating a person's death simply because you disagree with that person is reprehensible. I did not agree with everything Scalia said on the Court, but I mourn his death and give my condolences to his family and friends.

Posted by: Stefan | Feb 13, 2016 8:02:51 PM

Justice Scaliia may have claimed to be an originalist and textualist, but he was intellectually dishonest when the text ran counter to his opinions. There will be enough homages paid to him from more polite people, who probably wouldn't be impacted from losing their health insurance if his inconsistency in King (where he contradicted his own dissent in Sebelius) carried the day. Supreme Court decisions have consequences, in matters like health insurance and gun violence to name just a few. His jurisprudence had a negative impact on many people's lives, but there will be very little written about that. I poured myself a beer when I heard the news.

Posted by: Cent Rieker | Feb 13, 2016 7:46:22 PM

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