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Professor Taylor's reflections on Justice Scalia

Professor John Taylor

MORGANTOWN, WEST VIRGINIA—Following the February 13 passing of U.S. Supreme Court Justice Antonin Scalia, WVU Law professor John Taylor, who teaches Constitutional Law, provided the following insight and reflections:

Justice Scalia’s Influence and Legacy

Justice Antonin Scalia will be remembered as one of the more significant Justices in the modern history of the Court. He was the intellectual leader of the Court’s conservative wing during a 30-year period when the Court moved to the right on many issues, and his ideas have influenced the terms of constitutional debate across the political spectrum.

Justice Scalia described himself as an “originalist” in constitutional interpretation, though his brand of originalism was leavened with a dose of pragmatism and (usually) respect for long-settled precedents. (“Faint-hearted originalism,” he called it.) In statutory interpretation, he stressed the primacy of the text and distrusted reliance on legislative history and legislative purposes. He brought heightened intellectual respectability to both originalism and textualism, and even his adversaries have been influenced by his positions. Originalist and textual arguments are a good deal more common in the Court’s opinions today than they were when Justice Scalia joined it. 

Justice Scalia saw himself as a proponent of judicial restraint who believed that most important decisions ought to be left to the political process (though his critics would dispute that characterization in areas like affirmative action), and for this reason he favored bright-line rules over balancing tests when crafting constitutional doctrine. He was of course a conservative jurist in most respects, but occasionally surprised his critics by taking unexpected positions (especially in the law of criminal procedure). He will perhaps be most fondly remembered for his lively writing style.

Whether you agreed or disagreed with his positions, his opinions were engaging, often memorable, and rarely dull. He will be missed.

What happens next?

The Court’s docket this terms includes several highly visible and politically contentious cases that have not yet been decided in areas including affirmative action, abortion rights, and immigration.

The most politically contentious cases are often decided on 5-4 votes — usually but not always with Justice Kennedy determining the outcome — and without Justice Scalia some of these cases will likely result in 4-4 deadlocks (which leave standing the lower court decision being reviewed).

Senate Republicans have already vowed to block confirmation of any successor proposed by President Obama so that the next President can fill the vacancy. If Senate Republicans remain faithful to that pledge, the Court will be operating at less than full strength for over a year. This is far from ideal, and historically it would be an unusually long vacancy. (To my knowledge, one would have to go back well into the nineteenth century to match it, and there is plenty of time to complete the confirmation process if the Senate cooperates.)

Given the relative lateness in his term and a Senate controlled by the opposition party, President Obama may well decide to nominate a “centrist” Justice to succeed Justice Scalia. This would have much to recommend it and, in my view, such a nominee ought to be given a fair hearing and an up or down vote. That is how I think the system is supposed to work.

In this era of polarization, however, it would be difficult for any nominee to be seen as a genuine “centrist” who could garner widespread bipartisan support. What counts as “centrist” to Senate Republicans when a good portion of their base regards the generally conservative Justice Kennedy as a RINO (Republican In Name Only) or even a liberal because of his decisions on gay rights?

Conversely, President Obama’s idea of a centrist would surely be someone at least a bit to the left of Justice Kennedy and thus someone Senate Republicans will not want to confirm when they can wait things out until the election and hope for a favorable result in November. (The days seem to have passed when we could expect many politicians to look at Supreme Court nominations as anything other than a way to entrench their own political preferences for the next twenty or thirty years.)

I’m not holding my breath that we’ll have a new Supreme Court Justice before next year, but I would be delighted to be proved wrong on the point.

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