On Saturday evening news broke of the death of Antonin Scalia, who had served as an Associate Justice of the Supreme Court of the United States since his appointment by Ronald Reagan in 1986. The longest serving member of the Supreme Court at the time of his death, Scalia was 79 years old. Reports indicated that Scalia was found dead on Saturday morning at a ranch in West Texas, after failing to emerge for breakfast following a day spent quail hunting.
Born in Trenton, New Jersey in 1936, Scalia obtained his law degree from Harvard, spent six years at the Cleveland law firm of Jones, Day, Cockley, and Reavis, and four years as a professor of law at the University of Virginia, before entering public service in 1971. Working his way up under the Presidency of Richard Nixon, in 1974 he was confirmed as Assistant Attorney General for the Office of Legal Counsel under the newly sworn in Presidency of Gerald Ford. When Ford was ousted in 1977 by the successful Democratic challenge of Jimmy Carter, Scalia returned to the world of academia, with a residency at the University of Chicago Law School.
In 1982 Ronald Reagan appointed Scalia to the United States Court of Appeals for the District of Columbia Circuit, an influential post as the D.C. Circuit often reviews the policy making of federal independent agencies of the United States government. Considered the second most powerful court in the United States, and a stepping-stone towards the Supreme Court, Scalia was duly appointed an Associate Justice of the Supreme Court in 1986. Confirmed by the Senate by a vote of 98-0 – at the same time as the Senate battled over the appointment of William Rehnquist to the position of Chief Justice, which was confirmed on the same day by a vote of 65-33 – Scalia in the process became the first Italian-American Justice.
A leading proponent of originalism, which seeks to interpret the United States Constitution as it would have been reasonably understood at the time of its adoption, Scalia was equally noted for his staunch conservatism and for the wit and outspokenness of his opinions. Sharply observing the separation of powers but keen to assert the authority of the executive branch, often taking the position of the states in disputes with federal government, he routinely filed separate opinions and was the author of scathing dissents.
Opposing affirmative action, believing that rights concerning abortion and homosexuality were not enshrined in the Constitution but ought to be decided at state level, in 2003, responding to the decision in Lawrence v. Texas which struck down sodomy laws and made same-sex sexual activity legal in every state, Scalia argued:
‘Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.’
And in 2004 he remarked in Philadelphia:
‘We have now determined that liberties exist under the federal Constitution – the right to abortion, the right to homosexual sodomy – which were so little rooted in the traditions of the American people that they were criminal for 200 years.’
Attacking the majority opinion in Obergefell v. Hodges last year, which legalised same-sex marriage across the United States, Scalia suggested:
‘This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.’
In the 2008 case District of Columbia v. Heller, the Supreme Court ruled 5-4 to strike down a local handgun ban, in the process determining for the first time that the Second Amendment protects an individual right to keep and bear firearms for self-defence. Delivering the majority opinion for the court, Scalia wrote:
‘Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.’
The 2010 case McDonald v. Chicago clarified that this right extends to the states.
Elsewhere Scalia supported the constitutionality of the death penalty, called the Supreme Court’s 2015 decision to uphold the Affordable Care Act ‘interpretive jiggery-pokery’, and concurred with the 5-4 verdict in the 2010 case of Citizens United v. FEC, which determined that the First Amendment prohibits the restriction of political campaign spending by organisations, effectively allowing the political landscape in the United States to be shaped by unlimited election spending.
* * *
The news of Scalia’s death, which was confirmed by Chief Justice John Roberts, prompted an immediate struggle over the terms of his successor. Mitch McConnell, a member of the Republican Party and the Majority Leader of the Senate, issued a statement asserting that the next president – rather than Barack Obama, whose second term will end in January next year – should be the one to appoint a replacement to the court.
On the Republican campaign trail in South Carolina, Ted Cruz – who has previously argued ‘We are one justice away from the supreme court taking away every single restriction on abortion and mandating abortion on demand […] up to the moment of birth’ – tweeted the same thought, posting:
‘Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.’
But Barack Obama, after praising Scalia as ‘a brilliant legal mind’, ‘one of the towering legal figures of our time’, and ‘one of the most consequential judges and thinkers to serve on the Supreme Court’, said:
‘I plan to fulfil my constitutional responsibility to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfil its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone, they are bigger than any one party; they are about our democracy. They are about the institution to which justice Scalia dedicated his professional life and making sure it continues to function as the beacon of justice that our founders envisaged.’
And Democratic presidential candidate Hillary Clinton was more vehement, arguing:
‘The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our constitution. The Senate has a constitutional responsibility here that it cannot abdicate for partisan political reasons.’
Even in the modern era of politics, it rarely takes much more than a couple of months from the time a president nominates a justice to the final Senate vote, and the Senate has never taken more than 125 days to vote on a successor from the time of nomination. Yet some analysts have already noted the ‘Thurmond rule’, an unofficial and infrequently followed tenet, which posits that towards the end of a presidential cycle the Senate will resist nominees to the federal judiciary. The rule takes its name from June 1968 and the final months of the presidency of Lyndon B. Johnson, whose proposed appointment of Abe Fortas to the position of Chief Justice was blocked by Republican Senator Strom Thurmond.
For a nomination to pass in the Senate, it must receive at least 60 of 100 votes. Issues from immigration reform to climate change are on the Supreme Court’s upcoming agenda, with President Obama’s plan to shield millions of undocumented immigrants from deportation expected to begin its hearing in April before being decided towards the end of June. With eight sitting justices in the Supreme Court, a 4-4 tie simply upholds the decision of the lower court.
While some looked towards an increasingly fraught presidential campaign and a nomination process that could determine the outlook of the Supreme Court for a generation, others pondered future changes in the makeup of the court: Stephen Breyer is 77, Anthony Kennedy 79, and Ruth Bader Ginsburg, a liberal justice yet close friends with Scalia, will be 83 next month.