Justice Antonin Scalia’s Legacy and the Brewing Storm Left in His Absence

I will not miss Antonin Scalia.

I’m not going to rejoice and gloat, because as much as I detested his influence on the Supreme Court, I know there were people in his life who loved him. They’re in a great deal of pain right now, and my heart goes out to them. I cannot revel in their pain.

But that doesn’t mean I can’t be glad he’s no longer on the court.

Scalia was a man of great intellect and a prolific writer. Say what you will about his actual decisions, his articulation of those decisions was always colorful, detailed, and articulate. I will cede that.

But I’m still happy he won’t be presenting said opinions from the bench of the highest court in the land.

Antonin_Scalia_Official_SCOTUS_Portrait (1)

Those who defend him argue that his decisions were not political, that he was simply an originalist, a classification Scalia embraced. In an address at the Woodrow Wilson International Center for Scholars in 2005, he stated:

I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.

This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room — “Justice Scalia, when did you first become an originalist?” — as though it is some kind of weird affliction that seizes some people — “When did you first start eating human flesh?”

Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. Everybody, at least purported to be an originalist. If you go back and read the commentaries on the Constitution by Joseph Story, he didn’t think the Constitution evolved or changed. He said it means and will always mean what it meant when it was adopted.

Or consider the opinions of John Marshall in the Federal Bank case, where he says, we must not, we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future.

Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.

Here’s the thing: that’s not a great defense of Scalia’s decisions. Scalia might have worn the term “originalist” as a badge of honor, but that framework has some major flaws. The Constitution is necessarily a living, breathing document. After all, it was written in an era where the founding fathers could not possibly have envisioned a world where women occupied board rooms, black people voted in great numbers with great conviction, and the world wide web opened a breadth and depth of information to the general public that completely changed the game. The nation is very, very different now, and our understanding of the Constitution has changed along with it.

Its fluidity is demonstrated by process and pragmatic concessions. For starters, Americans have passed a series of amendments that have changed the meaning of various sections from their original intention. Whether targeting the political, economic, or social fabrics of the U.S., each has, to different extents, had a monumental impact on the country. But in some cases, no amendment was changed, but our understanding of the way established portions should be read. For instance, though a person in the Constitution is referred to ubiquitously as “he” or “him,” we do not assume today that men are the only people subject to or protected by the language of those sections.

Scalia was not the sort of originalist who roundly rejected such evolution, but one who relied on the standard of “tradition” to interpret the context for Constitutional interpretation. This proved problematic for atheists and those who value separation of Church and State because Scalia’s concept of tradition was deeply rooted in Judeo-Christian values and his own Catholic faith.

He wasn’t one of those people who insisted the Founding Fathers were Christians. Instead, he looked to the practices of the population writ large during that era… much to the chagrin of today’s atheists. He argued that the nation has experienced growth and success because we “honor” God in our conduct, and has argued that the wall between Church and State is literally a modern manifestation of Satan in the Garden of Eden (yeah, I don’t get it either). Be it on abortion, sodomy, same-sex marriage, or separation of Church and State, Scalia balked at the idea of a secular nation. His perspective was perhaps most clearly on display in Lawrence v. Texas. When faced with the question of whether the state ought to be able to regulate private sexual activity, Scalia referenced Bowers v. Hardwick, a previous decision which had upheld sodomy prohibition in Georgia. That case had argued the law was Constitutional, essentially, because it had “always been that way.” While progressives eventually won the day as they pointed to a new level of awareness in the general population, Scalia’s dissent in Lawrence references that same standard. He stated:

In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and tradition[s],” as we have said “fundamental right” status requires.

And THIS represents the central disconnect between Scalia’s philosophy and… well, reality. Scalia misses the point that this entire nation’s history has been guided by an “emerging awareness.” It was an emerging awareness that led us to declare independence in 1776. It was an emerging awareness that led us to end slavery, give women the right to vote, prohibit segregation, ensure abortion access, and more. “Emerging awareness” is our nation’s tradition. The only way you don’t see that is if you are committed to maintaining the status quo, which, for Scalia, meant conservative social values rooted in tradition.

And that’s really what it was about. Scalia was more than willing to ignore tradition — both textual and realized — in other decisions.

For instance, the Founders could not possibly have been talking about massive financial contributions to political candidates from domineering corporate interests when they wrote the Constitution. Indeed, many of the earliest campaigns cost a whopping $0.00 dollars, with many primarily waged in the pages of newspapers. President Abraham Lincoln, in today’s dollars, would have spent around $2.8 million — a number dwarfed by the $1 billion campaigns of today. There’s no way James Madison could have forseen that.

And yet, in Citizens United, Scalia’s concurrence with the decision that framed corporations as being entitled to the same rights as an individual departs dramatically from the idea of “tradition.” The sentiment is certainly not explicitly advanced in the text of the Constitution, and the idea of corporations operating as individuals has never been a function of national tradition. Corporations weren’t even prevalent at the time the Constitution was written; Scalia, in fact, argued they didn’t exist. Yet Scalia contended that corporations are merely “associations” of people, and therefore protected in the same way that you or I might be. It’s an argumentative acrobatics display worth reading, if you’re so inclined.

In other words, Scalia, despite his brilliance, only seemed concerned with “tradition” when it came to Judeo-Christian values, and more than willing to set it aside when faced with a question that uniquely impacted conservative politics. For those reasons, good riddance.

Don’t get too excited, though. His absence leaves a void that’s already creating chaos, the results of which could be devastating on a number of levels.

Almost immediately after news of Scalia’s death broke, Congressional Republicans and GOP Presidential candidates began sounding the alarm, arguing that no replacement should be appointed until the next president is in office. Perhaps this should be unsurprising coming from a party whose central mandate for the past eight years seems to have been “STOP OBAMA AT ALL COSTS,” but in this case, their obstruction shows that the party has definitively jumped the shark. From Ted Cruz to Mitch McConnell, the argument has been that the voters should have a say in this.

This line of argumentation is utterly asinine. For starters, the voters did have a say on who makes this appointment… when, knowing full well that half the court was on the brink, they re-elected President Obama in 2012. Moreover, this is an utter abdication of Congressional duty. One could argue that they abdicated that responsibility eight years ago, but this? This would be unprecedented.

Congress has, in the past, rejected candidates nominated by the president. A long vacancy is not unheard of as a result. But that’s not what we’re talking about here. This is Congress refusing point blank to even consider any candidate offered. And while the longest vacancy in history was 363 days, the current approach would likely leave a seat vacant for much longer. Even if we assume that the next president nominates a candidate on Inauguration Day (which, let’s face it, won’t be the case), the approval process of a candidate takes months. It is plausible that, if things continue in this manner, that seat could sit open for almost 18 months.

Ignoring for a moment that this is noxious political obstructionism, the consequences of an empty seat for that long a time could have significant consequences, regardless of which side of the aisle you’re on. Notably, for pro-choice folks, this would most likely result in a tie decision in Whole Women’s Health v. Cole, which wouldn’t set a new precedent on abortion restrictions, but would preserve the laws in Texas, shutting down the majority of their abortion clinics. As we’ve written in the past, there’s still a chance that Justice John Roberts or Anthony Kennedy swings to the side of reason, but that possibility may decrease if the Court feels like it has to operate in as partisan a manner as possible given the numbers.

That would be a tragedy for the women of Texas, but there is one funny thing about the Republican strategy: if the GOP goes down this road, odds are that the results favor the left more than anything with the current eight on the bench.

For instance, in Friedrichs v. California Teachers Association, the question is whether or not unions can extract dues from all individuals whose interests are represented in the collective bargaining process, regardless of their desire to participate in the union. This has been part of existing doctrine for a long time, and the lower court upheld that doctrine. If Scalia were on the court and it split along partisan lines, this doctrine would have been obliterated, severely cutting into union resources. With a 4-4 split, conservatives opposed to unions take a hit.

In Evenwel v. Abbott we find the question of whether voting populations should be tallied according to total population or total registered voter population. The former is the standard, which more accurately represents population density and allows for (admittedly inadequate) representation of disenfranchised groups who may not be able to vote. In today’s political climate, that benefits Democrats. The lower court upheld the standard, so a 4-4 split hurts GOP gerrymandering efforts.

Speaking of which, in Harris v. Arizona Independent Redistricting Commission, the Court was considering whether an independent group could be responsible for drawing district lines. Such a framework primarily hurts GOP efforts to redraw electoral maps in order to maximize their ability to win seats. It was an expected 5-4 split at the Supreme Court, and is now a likely 4-4 decision, which means the lower court’s affirmation of the independent commission will stand. Again, a GOP loss.

These are just a handful of cases. There’s a lot more that can and probably will happen if Congress makes us wait 18 months to fill the vacancy. So while I’m certainly glad Scalia won’t be writing anymore decision, one can’t help but feel that the chaos he’s left in his wake was his parting gift of irritation, a cherry on top of his often infuriating tenure on the bench.

(Image via Supreme Court)

About Lauren Nelson

Lauren Nelson is an advocate and aspiring ally focused on intersectional justice. When she's not gabbing on social media or chasing after her precocious seven year old, you'll find her researching and writing extensively on the subjects of politics, policy, culture, neurodiversity, and faith for The Friendly Atheist and Rethink the Rant.


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