Of Supreme Importance

The death of Justice Antonin Scalia has launched the Supreme Court into the spotlight of national politics. What will happen next, both in terms of filling his vacancy and how he will be remembered, is an unsettled question.

The Republican-controlled Senate will most certainly not confirm an Obama nominee to the Supreme Court. Senate judiciary leaders have said they won’t even hold hearings and begin that process. However, aside from the negative PR that will come with reneging on those claims, there are few consequences for Chuck Grassley et al to at least go through the motions on Obamas nominee (or nominees). In fact, there is a good deal of upside—Senate republicans may be able to shake their rising reputation of unadulterated obstructionism, a narrative that Democrats are aggressively pushing in the media, and string along a nomination for months.

Republicans first cited “precedent,” a term commonly associated with the legal doctrine of stare decisis, as the reason they should not confirm a Supreme Court justice in an election year. But Washington University Professor Lee Epstein, who examines trends and behavior in the judicial system, was not buying it. “Hearing these politicians invoke precedent is hilarious,” she said in an interview. At best, Epstein told me, it could be called tradition, but even that would be a questionable label because of Justice Kennedy’s confirmation in 1988.

Regardless, the Constitution makes it clear that the President nominates a justice and the Senate confirms one, and circumstantial “precedent” or “tradition” should not be a factor. However, there are other reasons President Obama is under such scrutiny, and why he must be very careful in choosing his nominee.

Many of the most controversial Supreme Court decisions in recent memory, including the Citizens United v. FEC case that addressed campaign finance were polarizing in the Court as well as in the “court” of public opinion. Many 5-4 precedents will be vulnerable if even a centrist justice replaces the conservative Scalia, as it will, in Epstein’s words, “shift the center of gravity on the Supreme Court.” And while these narrow precedents are pragmatically vulnerable due to the possibly changing voting dynamics on the Court, they are likewise more susceptible to change because those narrow decisions are not seen to be as robust as more unified ones. In other words, the Court may more readily overturn cases decided by a narrow margin, and at the same time may find it easier to do so in the event that Scalia’s replacement is at least a centrist.

No matter how the future of the Court unfolds, Justice Scalia’s influence on the bench in his nearly 30-year tenure is indubitable. The words “titan” and “juggernaut” were mentioned frequently on TV, and his longtime colleague, friend, and ideological inverse Justice Ginsburg praised his incisiveness, humor, and “pungent opinions.” Perhaps more even more tellingly, towards the end of her statement, Justice Ginsburg described her late friend and coworker as a “magnificent performer.” Justice Scalia was a bold presence on the Court, and his oftentimes-pointed dissents were unconventional and often impudent. There was never any doubt when Justice Scalia was behind the text.

“A lot of his behavior would be consistent with a justice who is trying to leave a legacy,” noted Professor Epstein. But that legacy may revolve more around Justice Scalia’s reputation and personality than anything else. While he instilled a culture of more active questioning of attorneys during oral arguments (a culture Justice Thomas rejects, but which the other justices often follow), it is questionable whether his other main contribution, a strong commitment to originalist interpretation of the Constitution, will carry on. (Justice Thomas is the only remaining justice who consistently employs originalism, the philosophy that the Constitution should be interpreted as it would have been by an ordinary individual around 1789.) Justice Scalia viewed decisions in his own way, and any of the other legal minds who felt differently were so obviously mistaken. In Obergefell v. Hodges, the recent case ruling in favor of same-sex marriage, Scalia noted in his dissent that “the stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” In his dissent of the opinion in Stenberg v. Carhart, a 2000 case which advanced abortion rights, Scalia aptly wrote in that he was “in an I-told-you-so mood”

“He was not a grand coalition builder, but I’m not convinced that was his goal,” Epstein said. “I think his goal was creating a legacy for himself, rather than bringing together people.” Whether that legacy will be seen a righteous boat against a tide of unjust, “living constitution” jurisprudence, or as a series of belligerent protests against the inevitable progression of justice is unclear. What is certain is that Justice Scalia’s presence on the court, his enthusiasm, his humor, and his passion will not soon be forgotten.

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