Let’s take a look at this week in legal news.
Supreme Court Justice Antonin Scalia dies at age 79
Supreme Court Justice Antonin Scalia died of apparent natural causes on Saturday, February 13th at the age of 79. Justice Scalia was visiting Cibola Creek Ranch, a resort in West Texas, at the time of his death.
Justice Scalia was a strong advocate for an originalist interpretation of the Constitution. He once described the U.S. Supreme Court as not divided between conservative and liberal, but between originalists and those who believed in a living Constitution. Scalia once said Originalism is “what the words mean[t] to the people who ratified the Bill of Rights and the Constitution.” He has been described as a “leader of a conservative intellectual renaissance” because of his “transformative legal theories, vivid writing and outsize personality.”
Antonin Gregory Scalia was born in Trenton, New Jersey, on March 11, 1936. He earned his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School. Scalia practiced law for seven years before shifting to a role in academia, teaching at the University of Virginia and the University of Chicago. Scalia served on the U.S. Court of Appeals for the District of Columbia and chaired the ABA’s Section of Administrative Law. Scalia was nominated to the Supreme Court in 1986 by President Ronald Reagan. He was the Supreme Court’s longest serving current member of the court, in the 30th year of service at the time of his death.
Many explorations of Justice Scalia’s legacy have been written in the days since his passing, including by the New York Times, Wall Street Journal, Washington Post, SCOTUSblog, and National Law Journal.
The New York Times reviewed highlights of Justice Scalia’s opinions here.
The impact on cases pending before the court
In the absence of a ninth Justice, if a 4-4 split occurs in upcoming cases, the lower appellate court decision would stand. There are several big cases pending before the court that may turn on the absence of Justice Scalia. The New York Times highlighted these cases:
- Friedrichs v. California Teachers Association. The case challenges mandatory union contributions for public employees. The likely outcome is a 4-4 split, which “would be a major victory for the liberal justices and public unions,” the Times says.
- Evenwel v. Abbott. At issue is whether the size of state legislative districts should be based on eligible voters or the overall population. A 4-4 split would leave in place an appeals decision upholding Texas’ practice of counting everyone.
- Whole Woman’s Health v. Hellerstedt, a challenge to Texas abortion restrictions. Scalia’s absence “may have no consequence” if abortion rights groups are correct in their optimism stemming from a court stay that partially blocked the restrictions, the Times reports.
- Zubik v. Burwell, a religious-liberty challenge to the opt-out procedure to the Affordable Care Act’s contraceptive mandate. Six other cases are consolidated with Zubik, and lower courts are divided.
- United States v. Texas. The case challenges President’s Barack Obama’s executive action to expanding deportation deferrals. A tie would leave in place an injunction blocking the program.
- Fisher v. University of Texas at Austin, which challenges the use of race in admissions at the university. Justice Elena Kagan has recused herself in the case, leading to the possibility of a 4-3 vote. It’s possible the university will lose on narrow grounds, the Times says. “Fisher, then, is the sole case in which Justice Scalia’s death eliminated rather than created the possibility of a tie,” according to the newspaper.
Tom Goldstein of SCOTUSblog examines these cases further in this post.
What comes next?
While Republicans are vowing to block any and all Supreme Court justice nominations from President Obama, indicating that they will wait until the election to move through the nominating process, Obama has pledged to “fulfill [his] constitutional responsibilities to nominate a successor.” Historically, there has not been any record since 1900 of a President not nominating or the Senate not confirming a Supreme Court nominee during a presidential election simply because of the upcoming election. Since 1900 there have been several instances of Supreme Court nominations and confirmations during presidential election years.
There has been wide speculation on who President Obama may choose to nominate in the wake of Justice Scalia’s passing. CNN’s legal analyst Jeffrey Toobin predicts that Obama will select Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit. Srinivasan was confirmed unanimously to his current appointment. He has worked in the U.S. Solicitor General’s office for both Democratic and Republican administrations, and argued 25 cases before the Supreme Court. Srinivasan would be the first Asian-American to serve on the Court. His name has also shown up in nomination predictions in the National Law Journal, the New York Times, the Wall Street Journal, and USA Today.
The blog Above the Law created a gambler’s guide to who may be nominated. At the bottom of the pack were Hillary and Bill Clinton, Obama himself, and Elizabeth Warren, while Sri Srinivasan and U.S. Solicitor General Don Verrilli lead the odds.
Tom Goldstein, founder of SCOTUSblog, has proposed that President Obama may nominate Attorney General Loretta Lynch. Goldstein predicts that the Republican Senate will ultimately reject her nomination, inspiring black and women voters to vote for the Democratic presidential candidate in order to ensure a Democrat will be able to appoint the next Supreme Court justice.
As noted by the ABA Journal, other possible nominees include:
- Judge Paul Watford of the San Francisco-based 9th U.S. Circuit Court of Appeals, a former federal prosecutor. Goldstein suggested Watford, an African-American, would get the nomination before he changed his mind and said the nominee could be Lynch.
- Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit. A former BigLaw partner, she has argued 32 cases before the U.S. Supreme Court, more than any other woman.
- Homeland Security Secretary Jeh Johnson, an African-American former BigLaw lawyer.
- California Attorney General Kamala Harris, who is African-American and Asian-American. Goldstein says Harris is considering a Senate run and probably doesn’t want the nomination.
- Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, a former federal prosecutor and Justice Department official.
- Judge Jane Kelly of the St. Louis-based 8th U.S. Circuit Court of Appeals, a former federal public defender who was confirmed unanimously in 2013.
President Obama’s statement on Justice Antonin Scalia
President Obama addressed the death of Supreme Court Justice Antonin Scalia from Rancho Mirage, CA:
“Good evening, everybody. For almost 30 years, Justice Antonin “Nino” Scalia was a larger than life presence on the bench: a brilliant legal mind with an energetic style, incisive wit, and colorful opinions. He influenced a generation of judges, lawyers, and students, and profoundly shaped the legal landscape. He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy: The rule of law. Tonight, we honor his extraordinary service to our nation and remember one of the towering legal figures of our time.
Antonin Scalia was born in Trenton, New Jersey to an Italian immigrant family. After graduating from Georgetown University and Harvard Law School, he worked at a law firm and taught law before entering a life of public service. He rose from Assistant Attorney General for the Office of Legal Counsel to Judge on the D.C. Circuit Court, to Associate Justice of the Supreme Court.
A devout Catholic, he was the proud father of nine children and grandfather to many loving grandchildren. Justice Scalia was both an avid hunter and an opera lover – a passion for music that he shared with his dear colleague and friend, Justice Ruth Bader Ginsberg. Michelle and I were proud to welcome him to the White House, including in 2012 for a State Dinner for Prime Minister David Cameron. And tonight, we join his fellow justices in mourning this remarkable man.
Obviously, today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy.
They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our Founders envisioned. But at this moment, we most of all want to think about his family, and Michelle and I join the nation in sending our deepest sympathies to Justice Scalia’s wife, Maureen, and their loving family – a beautiful symbol of a life well lived. We thank them for sharing Justice Scalia with our country. God bless them all, and God bless the United States of America.”
Statements from Supreme Court Justices
Retired and standing Supreme Court Justices have all released statements about the passing of their colleague, Justice Antonin Scalia.
Chief Justice John G. Roberts, Jr.:
On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. 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.
Justice Anthony Kennedy:
In years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship, and technical brilliance that Justice Scalia brought to the Court. His insistence on demanding standards shaped the work of the Court in its private discussions, its oral arguments, and its written opinions.
Yet these historic achievements are all the more impressive and compelling because the foundations of Justice Scalia’s jurisprudence, the driving force in all his work, and his powerful personality were shaped by an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards.
In the fullness of time Justice Scalia’s beautiful family will be sustained by the force and dynamism of his intellect and personality, attributes that were so decent and so powerful; but now they mourn. We give them assurances of our deepest sympathy and our lasting friendship.
Justice Clarence Thomas:
Justice Scalia was a good man; a wonderful husband who loved his wife and his family; a man of strong faith; a towering intellect; a legal giant; and a dear, dear friend. In every case, he gave it his all to get the broad principles and the small details right. Virginia and I are deeply saddened by his sudden and untimely death. Our prayers and love go out to Maureen and the Scalia family. It is hard to imagine the Court without my friend. I will miss him beyond all measure.
Justice Ruth Bader Ginsburg:
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.
Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.
Justice Stephen G. Breyer:
Nino Scalia was a legal titan. He used his great energy, fine mind, and stylistic genius to further the rule of law as he saw it. He was man of integrity and wit. His interests were wide ranging as was his knowledge about law, this Nation and its Constitution. He loved his family. He also loved ideas, music, and the out of doors. He shared with us, his colleagues, his enthusiasms, his humor, his mental agility, his seriousness of purpose. We benefitted greatly. His contribution to the law was a major one. Our hearts go out to Maureen and his family. We have lost a fine colleague and a very good friend. We shall miss him hugely.
Justice Samuel Alito:
Martha-Ann and I are deeply saddened by the terrible news. Nino was a remarkable person, and I feel very honored to have known him and to have had him as a colleague. He was a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture. His intellect, learning, wit, and memorable writing will be sorely missed, and Martha-Ann and I will deeply miss him as a friend. We will keep Nino, Maureen, and their family in our prayers.
Justice Sonia Sotomayor:
My colleague Nino Scalia was devoted to his family, friends, our Court, and our country. He left an indelible mark on our history. I will miss him and the dimming of his special light is a great loss for me. My thoughts are with Maureen, his children, and his grandchildren.
Justice Elena Kagan:
Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law. I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino’s friendship: I will always remember, and greatly miss, his warmth, charm, and generosity. Maureen and the whole Scalia family are in my thoughts and prayers.
Retired Justice Sandra Day O’Connor:
I am deeply saddened to learn of the passing of my dear friend and colleague, Justice Antonin Scalia. Nino was a tireless public servant who left an indelible mark on the Court and on our jurisprudence. His gifts of wisdom, wit, and wordsmithing were unparalleled, and he will be sorely missed.
Retired Justice John Paul Stevens:
Nino Scalia was a good friend, a brilliant man with an incomparable sense of humor, and as articulate as any Justice who ever served on the Court. He has had a major impact on the development of the law, and earned the respect of all his colleagues. We will all miss him.
Retired Justice David H. Souter:
Nino was a good friend, and I hate to think that we’ll never sit down together again to argue and tell a few stories and have some fun. I will always miss him.