It seems now to be confirmed that Antonin Scalia, one of the most influential figures in the history of American jurisprudence, has died after serving 30 years on the Supreme Court. Scalia’s influence went well beyond being one of the nine votes who decided the most important cases in the land. Scalia’s quick-witted and acerbic pen, used most often while writing in dissent, breathed life into a coherent conservative judicial philosophy that can correctly be credited with the fact that judicial restraint is even a topic of discussion in America, much less a growing force within the judicial branch itself.
When Scalia came to the bench, he joined a Supreme Court that had been drunk on its own power and self-importance for decades, following the lead of Earl Warren, a staunch liberal who expressed no reservations or qualms about second guessing the text of the constitution, the original intent of the framers, the constitutionally-expressed will of Federal and State legislatures, or the verdicts and wisdom of the average jury. Warren’s days were heady ones, for a Supreme Court justice, as judges could play the robed betters of the entire country without fear of serious contradiction.
Scalia and his writing changed all of that. For the first time, someone who actually sat on the Supreme Court gave voice to frustrations that millions of ordinary Americans felt at watching the Supreme Court brush away the America they once knew with the stroke of an arrogant pen. And while the Supreme Court still strays from its constitutional prerogatives with dismaying regularity, the days of the completely conscience-less Warren court are gone, likely forever.
Most importantly, Scalia’s writing gave rise to an entire generation of lawyers and lower-level judges who followed in his intellectual footsteps. Armed with a clear vision of how the judiciary should work and the constitutional limitations on judicial authority, the Federal judiciary has forever been changed due to Scalia’s influence.
Where do we go from here? Well, it’s difficult to say. McConnell and Cornyn have already signaled publicly and privately that Obama is unlikely to get more judicial nominations through, but a Supreme Court vacancy is a different political beast than a district or circuit vacancy. If Obama were smart, he would nominate a true moderate judge – someone nominated to an appeals Circuit by a Republican but with a moderate record – and defy Republicans to block it for an entire year. Since Obama is instead the nation’s first troll President, I expect he will instead nominate a liberal firebrand and use the upcoming year as a wedge issue, banking on the Senate’s long-established history of caving to get his way. In the meantime, Scalia’s absence will have a profound impact on a huge number of meaningful cases that are coming before the Supreme Court this year.
Either way, there’s at least a decent chance that Scalia’s replacement will be chosen by the next President, rather than by Obama. Regardless of whether that happens or not, Scalia’s death is likely to bring back to the forefront an issue that has receded to the background in the year of Trump – the importance of a conservative judicial philosophy.
It’s also worth noting that right now, the current Republican front runner has cited exactly one legal mind favorably during the course of eight publicly televised debate, and that was noted liberal Harvard professor (and avid Hillary Clinton supporter) Laurence Tribe. The chances that Trump would be able to even correctly identify someone who shared a judicial philosophy with Scalia, much less have the will or courage to fight for such a nominee, are virtually zero.
Do these things even still matter to Republican voters? We are about to find out, and the seat held by one of the most important legal minds in this country’s history hangs in the balance.