USA TODAY International Edition

SCALIA’S DEATH SETBACK FOR CONSERVATI­VE LEGAL MOVEMENT

- Susan Page and Richard Wolf USA TODAY

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.”

 ?? TIM DILLON, USA TODAY ?? Associate Justice Antonin Scalia became a hero to conservati­ves and a target for liberals during his three decades on the Supreme Court.
TIM DILLON, USA TODAY Associate Justice Antonin Scalia became a hero to conservati­ves and a target for liberals during his three decades on the Supreme Court.
 ?? PAUL MORIGI, GETTY IMAGES ?? Supreme Court Justice Antonin Scalia’s sometimes petulant personalit­y would be used to berate unprepared litigators.
PAUL MORIGI, GETTY IMAGES Supreme Court Justice Antonin Scalia’s sometimes petulant personalit­y would be used to berate unprepared litigators.

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