They are right that Antonin Scalia’s sudden death nearly a year before Barack Obama is to leave office is an epochal event, but for the loss of the nimble and dazzling old man himself and not because it will produce a major transformation of the U.S. Supreme Court.
From the Senate majority leader’s dramatic announcement within hours of Scalia’s death that the Republican majority in the Senate was united in preventing even consideration of any nomination by the president, in flagrant disobedience of the Constitution, you would surmise, wrongly, that Obama would be dramatically remaking the Supreme Court for another generation.
There is scant chance an Obama nominee will become a justice, even if he were to name a conservative Republican like Sen. Orrin Hatch of Utah or Sen. Lindsey Graham of South Carolina. That was settled 15 months ago when the GOP gained a solid majority in the Senate, every single member of which pledged to allow no enhancement of the Obama legacy his last two years and make every effort to shrink it, like undermining the Affordable Care Act and clean-power rules.
It is true that, for the first time in 44 years, Republicans do not have a majority on the Supreme Court and for the first time in 25 years do not have a virulently conservative majority. Now, and at least for the next 15 months, they are tied on both counts, 4 to 4, with little chance for a precedent-setting decision during that period on a big conservative issue, unless one of the softer justices on either side buckles on some issue like the carbon dioxide rules.
If Scalia’s seat remains vacant until the spring of 2017, it will be filled either by the Democratic president, giving liberals their first dominion on the court since the torrent of liberal reforms by the court after Republican Dwight Eisenhower packed it with liberals and moderates, or else by the new Republican president — likely the neo-populist Donald Trump. Whether the new president on Jan. 20 is a Democrat or Republican, his or her party will control the Supreme Court for a generation, regardless of what Obama does. Justice Ruth Bader Ginsburg will retire early in 2017, if not sooner, and fellow Democrat Stephen Breyer not long afterward. So the equilibrium on the court caused by Scalia’s death or the impact of a successful Obama appointment will be momentary.
But the absence of Antonin Scalia will be nonetheless profound. Many have written about the huge impact Scalia, by dint of intellect, brass and wit, made on the court and jurisprudence. No one mentions his biggest legacy, which is that he made a politicized judiciary not only respectable but the expectation. Since the 2014 election, it has been common knowledge that the Senate would not allow the Democratic president to appoint another justice. Majority Leader Mitch McConnell put it in writing Saturday, appropriately upon Scalia’s death.
Republican justices like John Paul Stevens and David Souter often turned out to be liberal rocks. The ultraliberal John F. Kennedy’s single nominee to the court, “Whizzer” White, was at least as conservative as Scalia though not as talented or influential. Scalia had a passion for the law, for he found in its vast tenets the latitude to support whatever he would like for the law to be in any situation. The force of his intellect and brass almost always brought other Republicans into the fold. When they strayed, as Kennedy, John Roberts and Sandra Day O’Connor sometimes did, they felt the sting of his fierce dissents and the need to get back under the blanket.
Originalism was the doctrine that he revived and made the bulwark of constitutional law. The Bill of Rights and other parts of the Constitution had to be interpreted precisely as people understood them when they were written, not in light of advancing knowledge and sensibilities. Phrases and concepts like freedom of speech, assembly, association and religion obviously were not intended to protect black people, who were at the time not considered full persons, or other irregular people, like women or gays. Race was a peculiar issue that confounded Scalia. He dodged questions about segregation, though he told one interviewer that he might have voted for the court’s 1954 decision outlawing school segregation although it violated his principle of originalism. No theory is perfect.
He was maddeningly inconsistent about the doctrine whenever the partisan need was heavy. When the Affordable Care Act came before the court and the party as one demanded its dissolution, Scalia found that the commerce clause relegated things like health care to the states and outside the ambit of the national government, although the court had many times recognized it as national prerogative. Justice Roberts left the Republican team on that, which has made him and those who confirmed him whipping boys in the presidential debates.
But Arkansans may remember that Scalia took precisely the opposite stance when President Reagan’s energy commission, ignoring an act of Congress that made intrastate utility rates a state matter, ordered Arkansas electric customers to pay for giant nuclear power plants in Mississippi and Louisiana. Arkansas was run by an ambitious Democratic governor, and Mississippi and Louisiana were firmly in the Republican fold. Scalia, writing for the Supreme Court, said the commerce clause gave the federal government autonomy on state utility regulation. We duly paid our southern neighbors $4.5 billion to help them on their electric bills.
Then there was the switch on interpreting the religious-liberty clause, from American Indians’ peyote-smoking ritual to the recent opinions on religious exemptions in Obamacare and elsewhere. And there was last week’s order, violating all precedents but cheered by all Republican aspirants, that halted implementation of Obama’s clean-power rules even though no appellate court had ruled on their validity. Without Scalia, the court’s stay is almost certain to be lifted late this year when a circuit court upholds the rules.
It was Antonin Scalia’s towering talent and mystique that he could be blatantly political but be respected, even revered, for it. The original originalists Madison and Hamilton, but no one much today, would be dismayed. One of Scalia’s nastiest dissents was in Obergefell, the gay-marriage case. Jim Obergefell, who brought the suit to force Ohio to recognize his marriage in Maryland to his late partner, who died of Lou Gehrig’s disease soon after the marriage, Sunday sent a tweet to the fallen jurist who had condemned the ruling: “Thank you for your service to our country.” Scalia would have reciprocated.