Sometime between when he went to bed on Friday night and the discovery on Saturday, Supreme Court Justice Antonin Scalia died suddenly in his sleep due to natural causes while on vacation to the Cibolo Creek Ranch in Shafter, TX. Scalia was 79 and the longest serving Supreme Court justice in US history. He is survived by his wife Maureen McCarthy, 9 children, and 36 grandchildren.
Scalia was born in Trenton, NJ, graduated summa cum laude from Georgetown University in 1957 and later magna cum laude from Harvard Law in 1960. He followed it up with seven years in private practice followed by five years teaching at the University of Virginia School of Law. In 1971, President Richard Nixon appointed him as the General Counsel for the Office of Telecommunications Policy where he formulated the federal policy for the once nascent cable television industry. In 1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel. The nomination was confirmed by the Senate nearly two weeks after Nixon resigned and Gerald Ford was sworn in.
Within the new Ford administration, Scalia lobbied for the president to veto a bill amending the Freedom of Information Act as part of the Government in the Sunshine Act of 1976. President Ford obliged, but Congress had enough votes to overturn the veto.
When Ford was narrowly defeated by Jimmy Carter in the 1976 presidential election, Scalia briefly worked for the American Enterprise Institute, a conservative think tank geared toward economics. In 1977, Scalia returned to teaching at the University of Chicago. While there Scalia was one of the early faculty advisors to the Federalist Society, which would later become a pipeline in conservative legal circles.
Scalia would return to Washington, DC in 1982 when President Ronald Reagan would appoint him to the Court of Appeals for the District of Columbia. Four years later, Reagan would appoint Scalia to the Supreme Court due to the retirement of Warren Burger as Chief Justice and the elevation of William Rehnquist to that position. Scalia was confirmed to the Supreme Court by a 98-0 vote.
Scalia was known for promoting Constitutional originalism, meaning the exact language of the Constitution is exactly that. At Southern Methodist University in January 2013, Scalia was quoted as saying the Constitution is “not a living document” and is “dead, dead, dead.”
Well… so is Scalia.
There are many cases that Scalia has authored siding in the majority and in dissent but here are some of the most consequential opinions that Scalia was known for.
In Planned Parenthood v. Casey (1992), a 5-4 decision with 3 concurring majority opinions, Scalia wrote that, “(t)he States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” While the decision upheld most of the Roe decision, it scaled back that decision. On the occasions that abortion has appeared at the Supreme Court, Scalia has tried to use it as an opportunity to overturn Roe as what was seen with the Texas anti-abortion HB-2 law that was to be heard before the court.
Speaking of Scalia’s view of originalism, if the high court had adopted that view it certainly would not have overturned segregation with the Brown ruling and the fight for marriage equality would have certainly grinded to a halt with trying to overturn same-sex marriage bans at the ballot box in conservative states thus wasting more time and energy needed.
Scalia vehemently opposed the idea of affirmative action and was likely to cast a vote to scale back, or at worst overturn it, using racial demographics in determine college acceptance in Fisher v. University of Texas. During oral arguments, Scalia said that “(t)here are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well,” and “(o)ne of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas. They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.”
Or maybe a Scalia-ism should be used that line of thinking.
Last summer was a remarkable year for the Supreme Court having heard arguments for the second legal challenge to ObamaCare and marriage equality. In the second ObamaCare challenge, the court ruled 6-3 that President Barack Obama’s healthcare law remained constitutional and if the opposition was interested in repeal, they should do so through the appropriate channels instead of the judicial branch. In his dissent, Scalia used terms like “pure applesauce”, “SCOTUScare”, and – my personal favorite – “jiggery-pokery.”
Last summer Scalia was a part of one of four dissents in Obergefell and used it as a matter to rail against so-called “judicial activism.” That in itself is ironic because I can think of three times the court has engaged in “judicial activism.”
In Shelby County v. Holder (2013), the decision that invalidated portions of the Voting Rights Act of 1965, Scalia called the landmark legislation a “perpetuation of racial entitlement” after noting that subsequent congresses had reauthorized and amended the legislation several times over with little to no opposition. That statement received gasps in the Supreme Court’s chamber.
The decision allowed many states to go ahead with voter ID laws that disproportionately impact low income, college students, and voters of color – key voting groups that tend to vote Democrat. In 2012 a Pennsylvania State Legislator admitted what the true goal of passing voter ID was: to allow Republican nominee Mitt Romney to win his state (which no Republican has won Pennsylvania since 1988 and Obama won that state and the election TWICE). In a Daily Show segment in 2013, a North Carolina Republican precinct chair also admitted the truth as well: to kick the Democrats in the butt.
“Judicial activism” is why we have the current campaign system in place. Citizens United v. FEC (2010) and McCutcheon v. FEC (2014) gutted the McCain-Feingold campaign finance reform law and anything that attempts to reign in moneyed interests. Citizens United is considered to be the source of the trouble and gave rise to the current Super PAC era in American politics. Senator Bernie Sanders (VT, I) has made overturning Citizens United a key piece of his campaign platform for the Democratic nomination. Both Citizens United and McCutcheon were 5-4 decisions. Both decisions were authored by Chief Justice John Roberts with Justices Kennedy, Alito, Thomas, and Scalia joining.
But the most egregious example of “judicial activism” was when the Supreme Court intervened in the Florida recount process for the 2000 presidential election. Scalia and four other Republican appointed judges – Rehnquist, O’Connor, Kennedy, and Thomas – ruled in a controversial 5-4 decision to halt the Florida recount efforts. In his Obergefell dissent, Scalia wrote this:
“I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
“It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
I guess Scalia had no problem with interfering in Florida’s efforts to conduct their recount efforts or invalidating the nearly 51 million that cast a ballot for then-Vice President Al Gore and making 5-4 the only result that matters from that election.
The only thing I mourn over with the passing of Antonin Scalia is his wife, his children, and his grandchildren. I assume he was a decent husband, father, and grandfather in comparison to how he treated our country.
Talk show host Stephen Colbert shared a moment that Scalia was maybe after all human when in 2006 after addressing the White House correspondents’ dinner, Scalia laughed as Colbert made hand gestures that the justice once made.
But the one person I feel a great amount of sorrow is Justice Ruth Bader Ginsburg.
Even though Scalia and she were on different sides of the court, they were friends. Both families were friends. Both Ginsburg and Scalia were fans of the opera. There was even an opera made about their opinions and dissents.
Perhaps it was recognizing their own mortality and they were in a unique club on why they were friends. There are now eight members of the Supreme Court and only three living former Supreme Court justices: Sandra Day O’Connor, David Souter, and John Paul Stevens. In the entire history of the United States, there have been 112 people that have served as a Supreme Court Justice compared to 43 presidents; one currently serving and four living former US presidents – Clinton, both Bushes, and Carter.
Though both clubs are rather exclusive, the Supreme Court is probably more exclusive due to the high court’s hidden nature. We see the president in the public view while the Supreme Court has balked at allowing cameras in the courtroom for oral arguments.
One thing for certain, the death of Antonin Scalia is likely the end of an era of conservative dominance on the Supreme Court.
That is one thing worth celebrating.