USA TODAY International Edition
SCALIA’S DEATH SETBACK FOR CONSERVATIVE LEGAL MOVEMENT
The death of Supreme Court Justice Antonin Scalia is a major setback for the conservative legal movement, as will become clear in the months ahead. Scalia, the outspoken leader of the court’s conservative bloc, was found dead at a Texas ranch Saturday morning.
“I am saddened to report that our colleague Justice Antonin Scalia has passed away,” Chief Justice John Roberts said in a statement Saturday afternoon. “His passing is a great loss to the court and the country he so loyally served.”
This was to be the term conservatives roared back after one in which the court’s liberal bloc won most of the important cases, such as same- sex marriage and Obamacare.
On tap to be decided in the next four months are cases affecting abortion rights, affirmative action, voting rights, the power of labor unions and President Obama’s health care and immigration policies — and conservatives stood at least a chance of winning them all.
Not anymore. Scalia’s death leaves an empty seat on the Supreme Court — almost surely for the remainder of the 2015 term, and most likely for the duration of Obama’s presidency. While the White House and congressional Democrats would like to fill the seat, their chances of prevailing on those important cases and others improved markedly.
That’s because the court is now divided evenly between liberals and conservatives — in fact, tilted slightly to the left because Justice Anthony Kennedy often takes the liberal side.
Scalia’s death was first reported on the website of the San Anto
nio Express News, which quoted an unnamed federal official saying the justice apparently died of natural causes. Scalia, 79, had spent Friday quail hunting at Cibolo Creek Ranch, then went to bed. When he didn’t appear for breakfast Saturday, a person went to his room and found a body.
Over nearly three decades on the high court, Scalia’s sharp intellect and acerbic opinions made him a hero to conservatives and a target for liberals. Yet he also was a close friend to a leader of the court’s liberal wing, Justice Ruth Bader Ginsburg.
APPOINTED BY REAGAN
During his three decades on the court, Scalia managed to steer the federal judiciary toward his twin theories of “originalism” and “textualism” — strictly reading the Constitution and federal stat-
“His passing is a great loss to the court and the country he so loyally served.”
Chief Justice John Roberts
utes to mean what their authors intended, and nothing more. Yet he leaves with more disappointments than achievements and a legacy written in acerbic dissents.
The first Italian- American to serve on the court when he was named by President Ronald Reagan in 1986, “Nino” Scalia established himself as a firm opponent of abortion, gay rights and racial preferences. He was the lone dissenter when the court opened the Virginia Military Institute to women and consistently opposed affirmative action policies at universities and workplaces.
On the winning side of the ledger, Scalia was best known for authoring the court’s 2008 ruling in District of Columbia v. Heller upholding the right of citizens to keep guns at home for self- defense. The 5- 4 decision, he said, was “the most complete originalist opinion that I’ve ever written.”
But Scalia’s sharp- elbows brand of conservatism more often showed up in testily worded dissents and even what The New York Times labeled “furious concurrences,” in which he agreed with the end result but ranted about the reasoning.
“Dissents are where you can really say what you believe and say it with the force you think it deserves,” he said. And if they prove correct years later, he went on, it “makes you feel good.”
That was the case in Morrison v. Olson, in which the court upheld Congress’ establishment of an independent counsel within the executive branch but beyond the president’s control. In time, many conservatives and liberals came to distrust the power given to independent counsels, including Kenneth Starr, whose fouryear investigation of President Clinton culminated in his impeachment. Congress let the law expire in 1999.
NO RETREAT, NO SURRENDER Scalia opposed the president and favored Congress in the more recent test of Obama’s recess ap- pointments power. While agreeing with the court’s majority that Obama exceeded his authority by going around the Senate to name members to the National Labor Relations Board, Scalia argued that such power should be limited far more than the court allowed.
“The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he wrote. “That is unfortunate, because the recess appointment power is an anachronism.”
Never one to compromise his principles, Scalia spent most of his career on the court watching helplessly as its moderate members — Justices Sandra Day O’Connor and, later, Anthony Kennedy — cut the deals that led to majority opinions on issues such as abortion and gay rights.
His objections, he said recently, were not based on policy views but on “who decides” — and his answer almost invariably was the Constitution, the Congress or the president, not unelected judges with lifetime appointments like himself.
POPULAR WITH COLLEAGUES Despite his sometimes petulant personality, Scalia was popular with his colleagues. He maintained close friendships with liberals such as Elena Kagan and Justice Ruth Bader Ginsburg, with whom he bonded in the 1980s when they served together on a federal appeals court.
Ginsburg recently recalled listening to Scalia deliver a speech to the American Bar Association. She disagreed with the thesis, she said, but “thought he said it in an absolutely captivating way.”
Kagan, whom Scalia taught to hunt for ducks, deer and other game, called him “funny and charming and super- intelligent and witty.”
“If you can’t disagree on the law without taking it personally,” Scalia was fond of saying, “find another day job.”