Justice Scalia’s Legacy and What Happens Next

February 13, 2016

Justice Antonin Scalia, who passed away today at the age of 79, certainly left his mark on American law.

Appointed to the Supreme Court by President Reagan in 1986, he quickly became part of the majority’s federalism revolution, putting limits on the Court’s Commerce Clause power for the first time since the 1930s. He wrote the majority opinion in the 2010 DC v. Heller case, recognizing a Second Amendment individual right to bear arms. He dissented in the 2005 Kelo v. New London case upholding private use of eminent domain, a topic that is suddenly an issue in this presidential election. He wrote the main dissent in the Affordable Care Act case, criticizing Chief Justice Roberts conclusion that the individual mandate amounted to a tax.

While he was usually a reliable conservative vote, there were some notable exceptions: he joined with the liberals in the 5-4 2001 Kyllo v. United States case finding thermal imaging was a search protected by the Fourth Amendment. In 2005, he upheld federal power over in-state medical marijuana in the 6-3 Gonzales v. Raich case, joining Justice Kennedy and the liberals. He joined the majority in the Texas v. Johnson flag burning case finding it to be protected speech; he later said he hated the result but felt he had no choice since the Constitution protects free speech. Those on the political left usually viewed him as a villain, particularly due to his vehement dissents. On the question of state tax overreaching, he preferred judges leave it to Congress to decide. He consequently found himself in an unusual 5-4 dissent with Justices Thomas, Ginsburg, and Kagan last year in the Wynne v. Maryland case, where he would have upheld Maryland’s double taxation of out-of-state economic activity. He however agreed to continue enforcing previously-upheld rules in the area, including the 1992 Quill decision, the Armour v. Indianapolis case challenging a city’s refusal to refund illegally collected taxes and a 2009 case invoking the Constitution’s rarely-used Tonnage Clause.)

So, what happens now? The “Thurmond Rule” will get a lot more attention: it’s not so much a rule, just a preference of opponents of a President not to confirm judges near the end of the presidency. There are certainly plenty of exceptions, although the last time a Democratic nominee got through a Republican Senate was President Cleveland’s nomination of Rufus Peckham in 1895 (and Cleveland was pretty close to the Republicans at that point). Justice Anthony Kennedy was nominated in 1988 by a Republican President and confirmed by a Democratic Senate, but only after the back-to-back confirmation failures of Robert Bork and Douglas Ginsburg. Justice Clarence Thomas’s confirmation in 1991, also by a Republican President and a Democratic Senate, was bruising.

For their part, Senator McConnell (R) has put out a statement saying he prefers that the vacancy be left for the next President, and Senator Reid (D) countered saying the President should nominate someone and the Senate should consider it. If the Senate refuses to act, President Obama could make a recess appointment (President Eisenhower appointed three justices that way), although a unanimous Supreme Court ruling from last year gives the Senate ways to prevent that. Justice Ginsburg’s retirement is often rumored, so there is that West Wing episode where a Democratic president tired of appointing moderates with no paper trail instead appoints a strong liberal and a strong conservative together, but that’s never actually happened. There’s also semi-joking commentary online about President Obama appointing himself, or Hillary Clinton, or Bernie Sanders, or other moves designed to scramble current politics. (I should note the Constitution sets no requirements for Supreme Court justices, although traditionally they’re always lawyers and usually judges.)

More likely is some moderately liberal but scholarly judge with little or no paper trail and eager to play the “Ginsburg rule” of hiding what he or she really thinks about issues, thus challenging a Republican Senate to let the seat sit vacant for a year or more. Names mentioned during the last vacancy included Seventh Circuit Judge Diane Pamela Wood, D.C. Circuit Judge Merrick Garland, Ninth Circuit Judge Sidney Runyan Thomas, former Georgia Chief Justice Leah Ward Sears, former Michigan Governor Jennifer Granholm, and former Homeland Security Secretary Janet Napolitano. Another option is a U.S. Senator who has good relations with his or her colleagues. (I’ll hold out hope for another option: the President opting for someone from the libertarian wing of the Federalist Society, which may be closer to him politically than Scalia was but possibly viewed by Republicans as one of their own.) A number of cases already argued and pending may have to be “put over” (postponed) until the Court is back to nine members, or else the lower court decision stands with no precedental value.

By all accounts, even those who disagreed with him on the issues, Justice Scalia was a nice man, a pleasure to work with, and funny. Scalia himself was characteristically playful and grounded when asked about his legacy: “I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.” Our sincere condolences to the Scalia family.

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