United States Supreme Court Justice Antonin Scalia, the most senior justice on the Roberts Court and a reliable vote for the Court’s right wing bloc, has died, according to a statement released today by Chief Justice John Roberts.
“On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away,” said Roberts. “He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.”
The San Antonio Express-News reported that Scalia was found dead in his room at a ranch in West Texas, where he had been staying during a quail hunting trip:
According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body. Chief U.S. District Judge Orlando Garcia, of the Western Judicial District of Texas, was notified about the death from the U.S. Marshals Service.
Scalia apparently died of natural causes. No foul play is suspected.
White House Deputy Principal Press Secretary Eric Schultz announced, “This afternoon the President was informed of the passing of Supreme Court Justice Antonin Scalia. The President and First Lady extend their deepest condolences to Justice Scalia’s family. We’ll have additional reaction from the President later today.”
UPDATE: Following the initial publication of this post, President Obama delivered a statement from California, where he is working and vacationing.
“Alliance for Justice extends its condolences to the family, friends, and colleagues of Antonin Scalia,” said AFJ’s Nan Aron in a statement. “His death creates a vacancy at a critical time in the history of the Court, the law, and our nation.”
“We urge President Obama to exercise his constitutional duty to nominate a replacement and for the Senate to fulfill its obligation to fairly and expeditiously consider the nominee. For the Senate to do otherwise would be an abdication of its responsibilities and a blow to public confidence in our democratic institutions.”
“We are confident that the President will nominate someone who understands the lives and struggles of everyday Americans, and trust that that the Supreme Court of the United States will not become a casualty of the politics of destruction, denial, and obstruction,” Aron added.
Scalia, seventy-nine, was the longest serving member of the Court, as mentioned. He was born March 11th, 1936 in Trenton, New Jersey. Scalia studied at Georgetown and Harvard, earning degrees in history and law. He worked in private practice for a number of years before becoming a law professor.
Scalia later served in the Nixon and Ford administrations. He was passed over for Solicitor General of the United States by Ford, but in 1982, Ronald Reagan nominated him for the United States Court of Appeals for the District of Columbia Circuit. Six years later, Reagan elevated him to the United States Supreme Court. He was unanimously confirmed on the same day as William Rehnquist.
As Associate Supreme Court Justice, Scalia made a name for himself as an unapologetic, reactionary archconservative. He became somewhat infamous for his bombast, particularly when he was on the losing side of a case.
But there were many times when he was on the winning side.
Scalia was among the five justices who ordered Florida to stop recounting ballots in the aftermath of the 2000 U.S. presidential election, in Bush v. Gore.
He was also one of the five justices responsible for one of the worst decisions in U.S. history: Citizens United v. Federal Election Commission, which unleashed an avalanche of secret, dark money in American elections.
From the Cascadia Advocate’s archives, here is a selection of posts about major U.S. Supreme Court decisions Scalia took part in that hurt our country:
- Conservative Supreme Court majority gives corporations unlimited power to buy elections (January 2010)
- U.S. Supreme Court substantially weakens Miranda rights in closely divided decision (June 2010)
- Supreme Court says police can strip-search anyone they arrest without probable cause (April 2012)
- The People vs. The Powerful Part II (June 2008)
Though Justice Scalia’s positions were wrong most of the time, there were a few occasions where we felt he reached the correct conclusion.
One of those occasions was when the Supreme Court decided in 2008 to allow Sam Reed to implement the Top Two system that replaced our Montana-style open primary. Justice Scalia wisely dissented in this decision, and we believe his opinion in that case ought to have been the majority opinion.
Another was in 2010, when Scalia wrote a fine opinion concurring with the majority in Doe v. Reed, a case that originated in Washington State. (Disappointing Tim Eyman, the Court held in Doe v. Reed that states may disclose the names of people who sign initiative and referendum petitions — as Washington has long done.)
Scalia’s death will result in a very rare, massively consequential event: a vacancy on the United States Supreme Court.
Were the Senate still controlled by the Democrats, President Obama could nominate someone much more progressive and reasonable to take Scalia’s place. But Republicans have already declared that they will not confirm anyone they don’t like.
Interviewed on MSNBC by Ari Melber, U.S. Senator Lindsey Graham stated flatly that he would not support any nominee that was not “a consensus choice”.
Asked by Melber to name someone who might be an example of a consensus choice, Graham said “Orrin Hatch”. (Hatch is an establishment Republican U.S. Senator from the state of Utah who is quite conservative.)
Incredibly, Mitch McConnell is saying President Obama shouldn’t bother to nominate anyone at all — that his successor should be the one to nominate Scalia. Of course, Obama has nearly a year left to go in his presidency, and we think it highly unlikely the President is going to forego his responsibility of nominating a qualified jurist to fill a vacancy on the United States Supreme Court.
SCOTUSBlog’s Tom Goldstein figures we can expect the vacancy to go unfilled until the 2016 elections have transpired, even if President Obama nominates someone:
The most immediate implications involve the presidential election. President Obama of course has the power to nominate a successor, with the consent of the Senate.
In the ordinary course, because the opening was unexpected, the nomination would not be forthcoming for a couple of months and then the confirmation process would take several more months.
Theoretically, that process could conclude before the November election. But realistically, it cannot absent essentially a consensus nominee – and probably not even then, given the stakes. A Democratic president would replace a leading conservative vote on a closely divided Court. The Republican Senate will not permit such a consequential nomination – which would radically shift the balance of ideological power on the Court – to go forward.
Obama has the power to make a recess appointment (Eisenhower and Washington are among the Presidents who made recess appointments to the Supreme Court, so there is precedent), but congressional Republicans are unlikely to give him that opportunity. They’ll call pro-forma sessions from now through the end of the current Congress, so they can argue that the Senate is not in recess.
If voters elect a Democratic Senate in November, that Senate would begin meeting in early January, three weeks before President Obama’s term ends. Theoretically, Obama’s nominee could be confirmed then by a Democratic majority.
However, Senate rules still allow the minority to filibuster Supreme Court nominations, and it is likely most Republicans would filibuster to prevent a progressive jurist from taking Scalia’s place on the Court.
Democrats could vote to establish new rules for the Senate to require that Supreme Court nominees receive a confirmation vote. That would prevent them from being able to filibuster an archconservative jurist nominated by a Republican President and sent to a Republican-controlled Senate in the future. But perhaps that would be for the best. Democrats did not band together to filibuster either Roberts or Alito, and if there was ever a time to deploy the filibuster against two bad Supreme Court nominees, it was in 2005 and 2006 when Bush held the White House.
Until Scalia has a successor, the Supreme Court is now a house divided. The Roberts Court has lost its working right wing majority, and that will have profound implications for a number of cases. SCOTUSBlog explains:
The passing of Justice Scalia of course affects the cases now before the Court. Votes that the Justice cast in cases that have not been publicly decided are void. Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.
If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”
The most immediate and important implications involve that union case. A conservative ruling in that case is now unlikely to issue. Other significant cases in which the Court may now be equally divided include Evenwel v. Abbott (on the meaning of the “one person, one vote” guarantee), the cases challenging the accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, and the challenge to the Obama administration’s immigration policy.
Right wing candidates and elected officials seemed to realize almost immediately that Scalia’s death would enable the Supreme Court’s four-member progressive bloc to stop the conservative bloc from reaching any more sweeping decisions in major cases planned and brought by them to increase Republicans’ political power and overturn progressive laws at the state and federal level.
“We’ve lost a giant on the conservative side,” lamented Lindsey Graham as MSNBC’s Ari Melber asked him for his reaction to Scalia’s passing.
As mentioned, we did not agree with Justice Scalia most of the time, and we won’t miss him as a jurist. His legacy, on balance, isn’t what we’d call positive for the country. Our deepest condolences go out to his family and friends, however, particularly his wife Maureen and their children, who have suddenly lost their father. This is a very sad day for them, and they have our sympathies.