Justice Scalia’s legal legacy, what happens now

United States Supreme Court Justice Antonin Scalia was officially confirmed dead in Shafter, Texas on Feb. 13 of natural causes. Love him or hate him, there can be no doubt the Scalia was influential as a Justice and in setting conservative precedence within the justice system. As the United States’s highest judicial body, the Supreme Court provides decisions for controversial and complex cases. But with the death of Scalia comes controversy and complexity from within the Supreme Court — a vacancy on the bench has occurred and Republican Senate Majority Leader Mitch McConnell has stated that the Republican majority will refuse to entertain a nominee selected by President Obama.

“I think it’s interesting that a Republican Congress would outright say that they wouldn’t even consider a nomination by Obama because that would be something that Scalia would have hated,” said Hunter Dunn, political science major. “He’s a textualist! The President has the right to propose a new justice, it’s in the Constitution. There’s no clause, there’s no ‘maybe’, it’s completely hypocritical to the legacy that Scalia would have wanted to just outright deny the Constitution and the Constitutional powers of the President.”

While the Obama administration has already started putting together a short list of replacements for Scalia, it’s important to understand and establish what Scalia’s legacy is before looking to the future.

“He was well-known as a judicial titan and I have lot of respect for him even though I don’t necessarily agree with his political ideology,” said Dunn. “He liked to say the he supports a ‘dead Constitution’, that he interprets it as it was written, not as he thinks it was meant to be, because he thought that the word of law is above any person. Scalia was the modern embodiment of textualism in law.”

Scalia’s political record made a massive impact on Constitutional law and judgement precedence. Alaska Supreme Court Justice Joel Bolger, who has been serving on the bench since 2013, explained Scalia’s views Constitutional interpretation, falling in line with textualism and originalism.

“At the time of his death he was well-known for the lively writing style of his opinions and his spirited arguments during oral arguments,” said Bolger. ” He had the opinion that judges should stick close to the text of the document rather than try to impress their own ideas into the interpretation. Textualism has to do with deciphering the meaning of the words that the founders used, and originalism has to do with trying to determine the intent of the writers at the time that the document was written, rather than any type of gloss or subsequent understanding.”

The absence of Scalia leaves three conservative-leaning justices — Chief Justice John Roberts, Samuel Alito and Clarence Thomas — and four liberal-leaning justices — Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. Justice Anthony Kennedy has often represented a swing vote in the court. Bolger commented on the irregularities in decisions and judgements during a vacancy.

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“An example is if there courts are voting on a lower court decision and it’s a tie vote, if the vote is 4 to affirm a lower court’s decision and 4 to reverse, then the tie goes with the lower court decision,” said Bolger. “It would be automatically affirmed even if half the court disagrees. This is very unusual — vacancy doesn’t ensure the same amount of confidence that you can demonstrate with majority approval.”

With the spotlight on President Obama and a possible nomination, it becomes clear that competing interests and goals on both sides of the political aisle are making this issue very controversial. James Muller, UAA’s chair for the Department of Political Science talked about the complications involved moving forward.

“If there is a nomination and the Senate does not take any action, or there’s a big fight and the nominee fails to be confirmed, it damages the possibility of that same person being a successful nominee later on,” said Muller. “One question the president has to tackle is what he wants to accomplish by naming someone as a nominee, given the fact that they are not likely to be confirmed.”

A possible nomination has many nuanced factors that play into why President Obama might pick a nominee and who that would be, but it all depends on what Obama hopes to achieve – pacifying the Republican Senate, establish another liberal voice in the Supreme Court or bolstering his personal legacy are all underlying considerations.

“Because of the composition of the Senate, it’s entirely possible for the Republican majority not to consider the nomination,” said Muller. “What has happened in past situations like this where there is a vacancy during an election year is that no action will be taken until a new president comes into office. There’s been a lot of speculation on whether Obama might pick a Republican who will be hard for his colleagues to turn down. However Obama has been a very ideological and fighting president, always fighting for his party and having no luck with the other party. It’s difficult for me to imagine Obama to pick a nominee that’s a compromise.”

Dunn agreed that it seems likely that if Obama did nominate a justice that the Senate majority wouldn’t play ball.

“I would never bet against a Republican grandstand because I would be out of money. That’s one of the things they do best in politics, they’re stubborn. I think it would be beneficial for them to save some face by at least pretending like they’ll consider Obama’s selection, but I think the next president will be the one to nominate the next justice.”

The outcomes of political debacles like this are nearly impossible to predict and at this point it’s just a waiting game. Justice Bolger brought the discussion back to the goals of the judicial system and the hope that a resolution creates stability and functionality within the Supreme Court.

“My impression is that the President has said that he will nominate a replacement for Scalia, but there is no consensus among the senators on whether they would approve a nomination,” said Bolger. “Since I’ve been appointed and even when I was in practice, I realized that judges try to set aside their political motivations and make decisions based on facts and the law at hand and I hope that practice continues regardless of the nomination.”

The country will be closely watching as the vacancy extends and hopefully the situation will be resolved in a manner that promotes the effectiveness of the Supreme Court and affirms cohesive governmental bodies.

Late Justice Scalia died at age 79 as one of the foremost conservative minds in judiciary politics. Photo credit: Eric Bridiers of the US Mission Geneva