This Saturday evening, Supreme Court Justine Antonin Scalia was found dead in a Texas ranch, where he was on vacation for a hunting trip. While there has been no official investigation, it is reported that he passed away in his sleep, after saying he did not feel well Friday night and then not getting up for breakfast.
The news is both incredibly shocking and saddening. Scalia, who was the longest serving Justice on the Court at the time of his passing – 30 years after being nominated by Ronald Reagan in 1986 – has a legacy that cannot be overstated. No matter where you fall on the ideological spectrum, you cannot deny the influence he has had on the Court and the study of constitutional law.
As eulogized in The New York times, Scalia’s “transformative legal theories, vivid writing and outsize personality made him a leader of the conservative intellectual renaissance in his three decades on the Supreme Court.”
For instance, Scalia’s firm belief in the doctrine of originalism — interpreting the constitution through its “fixed” historic meaning — makes little to no sense for me. In his dissent against Obergefell v. Hodges, the historic gay marriage decision of this past June, Scalia wrote, “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”
Nonetheless, I have been completely fascinated to read and learn about the peculiar friendship between him and Associate Justice Ruth Bader Ginsburg, a progressive Supreme Court icon.
When asked what she thought of his Obergefell dissent, Ginsberg responded, “I disagreed with most of what he said, but I loved the way he said it.”
It is important that we reflect on Scalia’s legacy. However, equally as pressing is thinking about what this means for the Court going forward as well as in the immediate. As of right now, the Supreme Court and its docket are in disarray.
According to SCOUTS Blog, votes that Justice Scalia has cast on cases that have not yet been publicly announced are now void. With a Court that often finds itself deciding with 5-4 votes, there are multiple cases that have, in the blink of an eye, become hung at 4-4, meaning the lower court decisions stands.
These cases are questions that necessitate answers and require due process of appeal from the highest court in the land. Notably on the docket is Evenwel v. Abbott, involving voter representation and redistricting, and Whole Woman’s Health v. Cole, challenging a Texas state law that restricts access to abortion clinics.
President Obama has announced he will soon nominate Scalia’s successor, which will then head to Congress for the “advise and consent” process. “Obviously, today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibility to nominate a successor in due time,” said the President.
However, Republican leaders have already declared that they believe President Obama should let his successor chose Scalia’s replacement. This is unprecedented — firstly, in the vowing to block a presidential Supreme Court nominee before he or she is even named.
And yet, President Obama has over 330 days left in office. The longest ever Senate confirmation process for a Supreme Court nominee was the 99 days for Justice Clarence Thomas in 1990, after a series of hearings about serious allegations of a history of sexual harassment.
It is not difficult to see Senate republicans and majority leader Mitch McConnell’s motivations, nor their self-righteousness and clear hypocrisy. I would suspect the Scalia, the strict textualist he was, would agree that, as per the Constitution, a president’s term is four years long – and those four years come with the full rights and responsibilities required of the office.
One of those important responsibilities is nominating federal judges. The stability and functioning of the American judiciary system and balance of power depend on it.
In the ninth Republican debate this Saturday night, hours after Scalia’s untimely passing, candidates struggled to articulate any valid reasoning why President Obama should defer or delay — Donald Trump conceding he too would nominate a replacement if he was in President Obama’s shoes, and Ben Carson taking nervously, pivoting to say, “when our Constitution was put in place, the average age of death was under 50.”
President Obama will and must go forward with the nomination. Anything less, in the words of Democratic leader Senator Harry Reid, would be a “shameful abdication of constitutional responsibility.”