How You Should Remember Antonin Scalia

By David Postic, Jacob Daniel, and Lester Asamoah

 

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The Supreme Court holds an interesting place in American pop culture: At once, it is one of the most highly visible and highly misunderstood parts of our government. And it is not only the Court that is misunderstood, but its members as well. By now, the entire world likely knows of the passing of Justice Antonin Scalia—the longest-serving member of the current Supreme Court and, perhaps, its most controversial member. In his thirty years on the bench, Justice Scalia emerged as the intellectual power behind conservative jurisprudence and became (in)famous for the stinging and colorful language of his opinions, particularly his dissents. His death has an immediate impact on the Court. For instance, any cases currently before the Court with votes that have not yet been made public are now void, and the justices must re-vote. And with only eight justices on the Court—four conservative and four liberal—ties are now a strong possibility, meaning that some of the more politically charged cases—including affirmative action, the President’s executive action on immigration, and voting rights—may not be completely resolved by the Court, for any tied opinion is not binding Supreme Court precedent, and the Circuit Court opinion stands as precedent for that Circuit.

As such a controversial (and political) figure, the news surrounding Justice Scalia’s death has focused almost exclusively on these quasi-political issues, as well as who will take his place on the Court. So that you will be an informed citizen in the following (what will surely be politically crazy) months, here is how the nomination process works:

1. The United States Senate is charged with confirming the President’s nomination for filling Scalia’s seat, but the Senate conducts that process in several steps. First, the Senate Judiciary committee holds a hearing for the nominee.
2. After the hearing, the committee votes to give a positive/negative recommendation or no recommendation for the nominee.
3. After the Judiciary committee votes, the full Senate then conducts a hearing chaired again by the Senate Judiciary chairman.
4. Once debate ends, the full Senate conducts a vote. If the nominee commands a simple majority, he/she is confirmed.

There are, however, ways that the Senate can hold up these proceedings before the final vote. Individual senators (or a group of senators) can filibuster endlessly the cloture rule, which requires 60 Senators to invoke, limits the debate to 30 hours. Typically the opposing party is reluctant to confirm a lifetime appointment during the last year of a lame-duck presidency. In fact, there is a name for this type of stonewalling: the Thurmond Rule, named for the late Senator Strom Thurmond (R-S.C.), who decreed that no judicial appointments would move in the last six months of a lame-duck presidency. While Majority Leader Mitch McConnell (R-K.Y.) has made headlines for saying he will not allow a confirmation for Scalia’s replacement, Senator Harry Reid (D-N.V.) made similar statements in 2008. So despite Republican senators making headlines for their “no confirmation” decrees, holding up a judicial nominee in this situation is not solely a Republican tactic.

Nevertheless, these issues will be covered heavily in the coming months (it could even stretch into next year), and hopefully you take time to understand all the political issues at play. It really is fascinating. But while these issues are interesting and, indeed, of great importance to our country, it seems that there has been far too little focus on the man that provoked these issues—Justice Scalia himself. As a result, and in honor of one of the most powerful men in the country, we would like to take a step back and examine the legacy that Scalia left behind.

Justice Scalia was appointed to the Supreme Court by Ronald Reagan in 1986 after spending most of his legal career working in the public sector. Amazingly, Scalia was confirmed by the Senate by a vote of 98-0—a result perhaps unthinkable in the current political climate. But such was the charm and intellectual prowess of Antonin Scalia.

Almost immediately he established himself as a unique voice on the Court, not afraid to go against the rest of the justices on any opinion that provoked his ire. In 1988, for example, he drafted a thirty-page dissent in Morrison v. Olson, writing so emotionally that Justice Harry Blackmun felt obliged to note, “[I]t could be cut down to ten pages if Scalia omitted the screaming.” But that passion was Scalia’s calling card, and his reputation for emotional dissents calls to mind the similarly stubborn Oliver Wendell Holmes: a man held by many to be one of the greatest justices to ever sit on the Court. And for all of their legal and philosophical differences, Oliver Wendell Holmes serves as perhaps the best modern comparison for what Justice Scalia meant to the Supreme Court.

Scalia was never afraid to make his opinions known—both in and out of the courtroom. He famously concurred in Bush v. Gore, the case that essentially decided the 2000 presidential election between George W. Bush and Al Gore. Years later, when Scalia was asked about the effect of that case on the American democracy, his reply was brief: “Get over it.” As Conor Clarke of Slate commented, “His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.”

But by all accounts, Justice Scalia was a happy man. His close friend (and near-ideological opposite) on the bench, Justice Ruth Bader Ginsburg, once said that Scalia was “an absolutely charming man, and he can make even the most sober judge laugh.” Indeed, a 2005 study showed that he brought the Court to laughter more than any of his colleagues. He brought a witty dynamism to the Court’s oral arguments, which he often used to spice up otherwise bland legal issues in his written opinions. For all you might disagree with how he voted on cases, I dare you to read one of Justice Scalia’s arguments and not feel a tug of doubt on your own convictions. That is the keen legal mind that was Antonin Scalia.

Justice Scalia was an originalist, a judicial philosophy that believes the Constitution should be interpreted accordingly to what the text meant at the time the document was ratified over two centuries ago. This view runs counter to the popular legal view of the Constitution as a “living document” that evolves as society evolves. But in Scalia’s originalism, the Constitution was not supposed to facilitate change: it was designed to prevent changes in the fundamental rights that the Founders fought so hard to secure. Scalia hated so-called “judicial activism” and believed that the legislature—as the representatives of the People—should be the true engine of legal change. It was these views that often prompted critics to accuse Scalia of letting his conservative political leanings compromise his legal judgment. But Justice Scalia was far from a rigid conservative, at least politically: He voted to uphold free speech in the Texas flag-burning case, and also struck down a prohibition on hate speech—liberal legal decisions by any measure. Disagree with him all you want, Scalia was his own man to the very end.

He was, as most great and controversial figures are, an extremely dynamic and likable individual. This is the Scalia that people should remember. Sure, remember his controversial philosophies, remember all his opinions that you disagreed with, remember his passion and his emotion and his anger. But also remember Justice Scalia for what he was: an intellectual powerhouse, a deeply thoughtful and philosophical legal mind, a man who adhered to his values and principles, and a legal titan of the twenty-first century.

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David Postic is a law student at the University of Oklahoma.

Jacob Daniel is a law student at the University of Oklahoma.

Lester Asamoah is a graduate student at American University.