The Consequences of Justice Scalia's Death

Yesterday, I wrote about Justice Antonin Scalia’s intellectual legacy. I concluded by noting that whether that legacy has any long-term traction, if those ideas will become cloaked with the reality of judicial decisions, is largely dependent on the next few nominees to the Court and whether they follow Scalia’s commitment to Originalism and Textualism, or not.

Already, we know that Scalia’s death alters the trajectory of several cases before the court because even in those cases the Supreme Court has already heard and voted upon, his vote is now null, and if his vote was decisive, the court must vote again. For progressives, this is good news, even if not exhaustively good.

In Friedrichs v. California Teachers Assoc., which was argued last month, Scalia seemed to embrace the reasoning of those who wish to decapitate unions by providing a judicial fiat mandating that no one should have to pay a union for that unions’ bargaining efforts on their behalf. And, it is hard to overestimate how extreme that reasoning was. The attorneys for Friedrichs did not argue that people should not have to pay for a union’s political activities if they disagree with the political positions the union takes; Already, they do not have to support such activity, only pay for the cost of bargaining and enforcing contracts. The lawyers for Friedrichs argued that negotiating a contract was itself an inherently political act, and that workers who benefited from such negotiations, but did not wish to join the union, should not have to pay for the benefit they received. I wrote about that case here. Scalia probably would have been in the conservative majority against the unions, even though there were political remedies available to the union busters, but now that case is likely tied at 4-4, in which case the lower court ruling, which sided with the unions, will stand.

Evenwel v. Abbott is another case in which Scalia’s absence could result in a win for progressives. Conservatives argue that states should not be required to draw the lines of congressional districts based on the total population of the districts, but based only on the number of voters. Because the poor and minorities tend to be disproportionately among the unregistered, this change could result in more Republican-leaning districts nationwide. Normally, so a momentous constitutional change would be shunned by conservative justices, but after the Supreme Court ripped the heart out of the Voting Rights Act in Shelby County v. Holder three years ago, all bets were off.

Some have noted that an equally divided court will leave in place some lower court decisions that sided with conservatives. This is true but irrelevant. The most obvious case is Texas v. United States which challenges President Barack Obama’s executive action deferring deportation for certain undocumented immigrants. True, a 4-4 vote on the Supreme Court will leave the lower court ruling, which overturned Obama’s effort, in place, but that is better than a 5-4 decision against the policy. That is little comfort to the immigrants who will be adversely affected by the lower court ruling, but the Supreme Court can hear the case again when a new member is confirmed - and vote the other way without having to overturn a precedent.

Many commentators have also predicted that the Zubik v. Burwell case, in which a variety of religious organizations are challenging the HHS contraception mandate, will now more likely go against the religious groups. This is far from obvious. It was Scalia’s 1991 opinion in Employment Division v. Smith that held religious organizations were not exempt from a generally applicable law, prompting Congress to pass the Religious Freedom Restoration Act (RFRA), which was intended to overturn Scalia’s ruling. Of course, RFRA is now the law, and it wasn’t when Scalia wrote Smith and in that case the religious rights at issue belonged to peyote-smoking Native Americans, not the institutions of the Roman Catholic Church. Still, it is far from clear Scalia would have disowned his own handiwork.

One other immediate consequence of Scalia’s demise is the battle royal that has already begun over his successor. President Obama was able to get both Sonja Sotomayor and Elena Kagan confirmed by the Senate, but they replaced two justices, David Souter and John Paul Stevens respectively who sided with the court’s liberal wing on most votes, even though both men had been appointed by Republican presidents. (It is a measure of how extreme today’s Republican Party is that some of their leading presidential candidates have been hurling verbal attacks at Chief Justice John Roberts!) But, when the Senate considers an Obama nominee to fill Scalia’s seat, they know they will be changing the balance of the court, potentially for decades. It is a measure of the degree to which the court has been politicized that Scalia himself was confirmed in 1986 by a unanimous vote of 98-0 and it is possible whomever Obama nominates may not even get a vote. It is appalling. If I were an Originalist or a Textualist, I would be appalled by Senate Majority Leader Mitch McConnell’s statement that Obama should decline to nominate someone because it is an election year. Where is that in the Constitution? Are there any other presidential powers that they think should lapse? If America is attacked, should the president be able to respond?  

I place much of the blame for the politicization of the court on those liberal jurists who stepped into isssues where they did not belong, most obviously in Roe v. Wade. There really was a kind of liberal judicial hubris that Scalia and other conservative legal scholars were right to denounce. But, in Scalia’s case, he went beyond denunciation and ironically introduced his own kind of hubris. People talked about his wit, but I wonder if black people thought it was witty when he suggested that they should not go to the best universities where they might not be able to keep up, or when he called the Voting Rights Act a type of racial entitlement. His comments about the LGBT community were coarse and hoary. This, as much as any judicial philosophy, made him a hero to today’s conservative movement.  

As I noted yesterday, for all the volumes that have been written about Originalism and Textualism, they are not ideas that are as rigorous as they pretend to be, and even those of us who are not legal scholars, and who may treat them superficially when compared to the treatment they receive from those scholars, nonetheless we sniff what is wrong about them, and the abuses to which Scalia put them. There was a lot about the Founding he seemed not to grasp, not least its intensely anti-Catholic temper. And there is no text for which there is a mere “objective” reading. His ideology made judicial interpretation seem easy, and to the unwashed masses, if not to the scholars of the law, that ease fed their own desire for simplistic political solutions.

For both friends and foes, his verbiage was not only divisive, but designed to work up the crowd. It worked. The conservative base could scarcely be more worked up than they are today. Obviously, Scalia was brilliant in ways that Pat Buchanan is not, but they are of a piece, an ethnic conservative Catholic piece, that is more nasty than thoughtful, more prejudiced than principled, and not as smart as they think they are no matter how many times they can quote Chesterton. For a jurist who predicated much of his judicial ideology on the idea that the courts should play a different, and diminished, role in a democracy from that played by the political branches, it is ironic that Scalia contributed to the politicization of the court, a politicization that guarantees the next few months will be exceedingly ugly for the nation.