The world was rocked by the death of 79-year-old Justice Antonin Scalia on Saturday, February 13, 2016. Scalia, the longest-serving justice on the current bench, was appointed by President Ronald Reagan on June 17, 1986 following the resignation of Chief Justice Warren E. Burger. His three decades on the Court have proven to be legendary and exceptionally influential in the interpretation of law and the Constitution. Even his passing has, fittingly, sparked a constitutionally-based showdown of governmental powers and the appointment of a new justice. Read on to learn more about Justice Scalia’s influential and legendary service to the Court and the politically fused debate regarding the appointment of a new Supreme Court Justice.

Who Was Antonin Scalia?

Justice Antonin Scalia was a conservative originalist powerhouse within the Supreme Court who unapologetically defended the Founding Fathers’ intent and precise wording of the Constitution to his last day. His interpretation was fully vested in originalism, an ideology that deems the Constitution a dead document–one inflexible and unchanging to the environment and developments of the world in which it was created.

Scalia was a master in crafting polarizing opinions which were widely criticized by many and revered by others. His stances on women, abortion, and minorities made him an unfavorable justice among Democrats particularly. His protection for privacy highlighted his commitment to the Constitution. Yet, his ability to artfully and logically decipher complex analyses in a nuanced manner was an undeniable talent; Chief Justice John Roberts dubbed Scalia a “leader of the conservative intellectual renaissance.“

Noteworthy Cases: A Legacy Through Opinion and Text

Here is just a sampling of the many noteworthy cases that define Scalia’s time on the court:

The Second Amendment

Justice Scalia delivered the majority opinion for District of Columbia v. Heller in 2008 in a step-by-step breakdown of the operative clause in the Second Amendment, concluding the right to bear arms extended to the people of the United States beyond the context of “militia” as cited in the Second Amendment. Scalia’s opinion further developed the limitations of the right to bear arms, drawing from a historical context and English implementation. He stated,

[T]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms…we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Privacy

Scalia led a crusade for the protection of privacy. Justice Scalia’s 2001 opinion in Kyllo v. United States set a clear limitation on police intrusion. In a 5-4 ruling, police were barred from utilizing thermal-imaging devices to explore the insides of a private home otherwise unknown without physical intrusion as a protection of the Fourth Amendment and unreasonable searches without the requisite warrant. The use of thermal-imaging was deemed to be an “intrusion into a constitutionally protected area.”

The Fourth Amendment

Scalia’s conclusion in Florida v. Jardines further cemented the Fourth Amendment definition of a search by finding that the use of a drug-sniffing dog on private property was considered a search and therefore, required a warrant. In 2013, when the Maryland v. King decision granted police the ability to collect and analyze DNA samples from individuals arrested for but not yet convicted of crimes, Justice Scalia delivered a fierce dissent. He stated:

[N]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

He was joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan in his dissent. Most recently, Justice Scalia supported the decision in Rodriguez v. United States, which extended Fourth Amendment protections for motorists detained for an extended period of time to allow police to conduct a dog-sniff without reasonable suspicion. Such police conduct was found to be in violation of the Fourth Amendment.

Gay Marriage and Rights

Justice Scalia was widely criticized for his conservative  stance on a variety of large-scale issues facing a more progressive America. His dissents regarding LGBTQ rights were particularly controversial. These range from his dissent in United States v. Windsor to his dissent in Lawrence v. Texas in which he stated that the Court had “largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct” when the majority invalidated Texas’ same-sex sodomy ban. In his vehement opposition, Justice Scalia compared homosexuals to drug dealers, prostitutes, and animal abusers, garnering him significant criticism.

Abortion

Justice Scalia continuously criticized the bench on abortion jurisprudence, and stated, in Hodgson v. Minnesota, “I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

In 1992, his partial dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey reinforced his stance:

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribe.

After three decades of service, one thing remains starkly clear–Justice Scalia remained dedicated to and bound by the words of the Constitution and what he viewed as the intent of its writers. His stances, often argumentative and unforgiving, remained unwaivering.

Has Justice Scalia’s Passing Caused a Constitution Crisis?

Before Justice Scalia’s passing could properly be mourned, the American public was reminded of the extremely high stakes in the 2016 election as Republicans took to the streets in an effort to prevent President Obama from nominating a justice to fill the current vacancy on the bench. Just thirty minutes after the news of Scalia’s death broke, Ted Cruz took to his Twitter and posted to say: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

A variety of reasons have been stated for the opposition to nominate Justice Scalia’s replacement. Senator Rand Paul weighed in, finding that a conflict of interest would exist if President Obama made a nomination as he has too many of his own policies before the Court. Conn Caroll, communications director for Utah Republican Mike Lee stated, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” Donald Trump called for the Senate to “delay, delay, delay” and Ted Cruz stated, “the Senate needs to stand strong.” Ohio Governor John Kasich reminded the world, “I just wish we hadn’t run so fast into politics.”

However, Democrats fired back by pointing out that it is written in Article II, Section 2 of the Constitution that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

Hillary Clinton commented: “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates.” Further reminding the public that President Obama remains in office until January 20, 2017 and has a duty to continue filling his obligations as Commander in Chief. Senator Elizabeth Warren demolished naysayers with the following statement that went viral:

The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States. Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes. Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.” Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

President Obama has already pledged that he will fulfill his duty to nominate an individual to fill Justice Scalia’s vacancy and the list of potential nominees includes many extremely qualified individuals. The list includes, but is not limited to: Sri Srinivasan of the District of Columbia Circuit Court of Appeals, Patricia Ann Millett of the D.C. Circuit Court of Appeals, Paul Watford of the Ninth U.S. Circuit Court of Appeals, Merrick Garland, the Chief Justice of the D.C. Circuit Court of Appeals, Attorney General Loretta Lynch, Jane Kelly of the Eighth U.S. Circuit Court of Appeals, and Jacqueline Nguyen of the Ninth U.S. Circuit Court of Appeals.

While it is unclear how the battle between President Obama and the Senate will play out, it is important to note the Senate has never taken more than 125 days to confirm a Presidential Supreme Court nominee. At the time of Justice Scalia’s passing, President Obama still had 342 days left in his term. Since 1900, eight individuals were nominated during election year, six were confirmed. With that said, there is still plenty of time for President Obama to nominate a Supreme Court Justice and for the Senate to confirm–we will just have to wait and see how this constitutional showdown plays out.

Resources

Primary

Cornell Legal Information Institute: District of Columbia v. Heller

 Cornell Legal Information Institute: Texas v. Johnson

Cornell Legal Information Institute: Kyllo v. United States

Oyez: Florida v. Jardines

Cornell Legal Information Institute: Rodriguez v. United States

Cornell Legal Information Institute: United States v. Windsor

 Cornell Legal Information Institute: Lawrence v. Texas

JUSTIA: Hodgson v. Minnesota

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

Secondary

Slate: Antonin Scalia Will Be Remembered As One of the Greats

Yahoo! News: Supreme Court Justice Antonin Scalia Found Dead in Texas

Grassfire: Remembering a Titan: The Legacy of Justice Antonin Scalia

 Cornell Legal Information Institute: Bush v. Gore

Atlanta Journal-Constitution: Antonin Scalia: 5 of His Most Famous Decisions

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

 Twitter: Ted Cruz

Charters of Freedom: The United States Constitution

Think Progress: It’s a “Conflict of Interest” for Obama to Nominate a Supreme Court Justice

Slate: Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?

NDTV: Trump Calls for ‘Delay, Delay, Delay’ on Scalia Successor”

The New York Times: Hillary Clinton Calls Mitch McConnell’s Stance on Supreme Court Nomination ‘Disappointing’

Slate: Obama’s Supreme Court Shortlist

The New York Times: Supreme Court Nominees Considered in Election Year are Usually Confirmed

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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The Supreme Court is making back-to-back headlines lately with a substantial number of major cases being decided . Judicial opinions and dissents are of the utmost importance, more than ever to this generation. America is undergoing a major shift in opinion regarding civil liberties. Although we are in the middle of what seems to be a crisis of racial tensions, the majority of Americans now stand behind equal freedoms regardless of race, sexual preference, religion, or gender. We see this more every day. Confederate flags are being lowered across the South. Although tolerant beliefs are expanding, it means little without mirrored changes in law. The Supreme Court’s decisions are the absolute law of the land. The nine justices decide which laws are constitutional and which are not. So it is no surprise that the appointment and confirmation of justices by the executive and legislative branches are undertaken with the gravest sincerity. Democrats and Republicans alike want justice on their side for the big issues. The justices preside over monumental decisions that write history. So what goes into a judicial appointment? What mistakes have liberals and conservatives made in choosing justices? And are any judicial transitions coming up in the near future?

How do judicial appointments work?

Supreme Court justices are nominated by the president, rather than elected. The nomination must be confirmed by a majority vote of the Senate, and appointments are set for life. A president can only make a nomination when one of the acting nine justices steps down or dies. The president may turn to the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association advice and support. Interest groups can offer influence as well. For example, after Justice Byron White retired in 1993, President Clinton received open declarations from multiple women’s group advocating for a female nomination.

Legal competence and exceptional ethical behavior are primary qualifications for nominees. Candidates who clearly demonstrate these qualities have a much stronger shot at being confirmed by the Senate. Candidates are scrutinized very closely. For example, the Reagan administration embarrassed itself when Douglas Ginsburg, a judicial nominee, was discovered to have a drug problem. The administration took extra care to make sure the next appointment,  Justice Anthony Kennedy, was completely clean. Since legal competency and ethical behavior are vital factors, most judges do not campaign for the appointment, but rather let their work speak for itself, though there are exceptions. Former President William Taft ran a successful campaign that led to his appointment. Other criterion include political ideology, party affiliation, personal loyalties, ethnicity, and gender. A president wants a nominee’s ideologies and outlooks to line up with his own, and he often sees nominations as a major part of his legacy after service.

Once a presidential nomination is official, the referral is sent to the Senate Judiciary Committee. It gathers evidence and conducts hearings with various testimonies from the candidate and other witnesses. Then it votes for the recommendation to the Senate. The vote is then sent to the Senate floor. Since the late 1940s, the Senate has been less likely to easily accept nominations. Between 1949-mid 2000s, four nominations were defeated, seven received more than ten negative votes, and others encountered heavy resistance. A nominee with moderate politics will find the process easier and faster.

Who sits on the bench today?

The Supreme Court has nine members, one of whom is the chief justice. Today there are six men and three women, all described more below.

• John G. Roberts, Jr.: Chief Justice Roberts is a white, Republican, Roman Catholic male born in Buffalo, New York and raised in Indiana. A 1979 graduate of Harvard Law, he was appointed to the bench in 2005 after being nominated by President George W. Bush.
• Antonin Scalia: Associate Justice Scalia is a white, Republican, Roman Catholic male born in Trenton, New Jersey and raised in Queens, New York. A 1960 graduate of Harvard Law, he was appointed to the bench in 1986 after being nominated by President Ronald Reagan.
• Anthony McLeod Kennedy: Associate Justice Kennedy is a white, Roman Catholic, Republican male originally from Sacramento, California. A 1961 graduate of Harvard Law, he was appointed to the bench in 1988 after being nominated by President Ronald Reagan.
• Clarence Thomas: Associate Justice Thomas is a black, Roman Catholic, Republican male from Georgia. A 1974 graduate of Yale Law, he was appointed to the bench in 1991 by President George H. W. Bush.
• Ruth Bader Ginsburg: Associate Justice Ginsburg is a white, Jewish, female Democrat from Brooklyn, New York. A 1959 graduate of Columbia Law, she was appointed to the bench in 1993 by President Bill Clinton.
• Stephen G. Breyer: Associate Justice Breyer is a white, Jewish, male Democrat from San Francisco, California. A 1964 graduate of Harvard Law, he was appointed to the bench in 1994 by President Bill Clinton.
• Samuel A. Alito, Jr.: Associate Justice Alito is a white, Roman Catholic, male Republican from New Jersey. A 1975 graduate of Yale Law, he was appointed to the bench in 2006 after being nominated by President George W. Bush.
• Sonia Maria Sotomayor: Associate Justice Sotomayor is a Latina, Roman Catholic, female Democrat from New York. A 1979 graduate of Yale Law, she was appointed to the bench in 2009 after being nominated by President Barack Obama.
• Elena Kagan: Associate Justice Kagan is a white, Jewish, female Democrat originally from New York. A 1986 graduate of Harvard Law, she was appointed to the bench in 2010 after being nominated by President Barack Obama.

The Swing Vote

The selection of each justice is vital as it could drastically affect the outcome of major cases. Our political climate could be vastly different today if certain nominations came from different presidents and at different times. Today a significant number of major cases come down to a 5-4 vote with the decision based on ideological lines. That is one justice setting the legal tone for the country. It showcases the importance of the individual. Here are some recent examples.

Lethal Injection

On June 29, 2015 the Court decided on 5-4 vote that an execution drug that renders prisoners unconscious in the first stages of the lethal injection process is constitutional and doesn’t violate the Eighth Amendment–cruel and unusual punishment. Justice Kennedy was the swing vote.

Pollution Limits

On June 29, 2015 the Court found in a 5-4 vote that the Environmental Protection Agency didn’t take a cost-benefit analysis into consideration before setting limits on mercury and other pollutant emissions on power plants. Therefore, the agency violated the Clean Air Act. Once again, the swing vote was Justice Kennedy.

Same-Sex Marriage

On June 26, 2015 the Court voted 5-4 that same-sex marriage is a guaranteed nationwide right. Once again the swing vote was Justice Kennedy, even writing the majority opinion.

The Down Side

Liberal/Conservative Regrets Choosing Justices

In such a serious and consequential process, there can certainly be mistakes and regrets. First, Presidents are known to have regretted appointments. There isn’t a guarantee how Justices will vote in the future and how ideologies can change. Once confirmed, the pressures on the justices are less from the outside of the courtroom, but more from within. Also, justices aim at stepping down at the appropriate time in order to secure an approved replacement. Basically, a conservative justice wants to retire under a Republic president and vice versa.

Misjudging Political Ideologies

Republican President  Theodore Roosevelt appointed Oliver Wendell Holmes to the bench in 1902. Justice Holmes ultimately voted against the president in major cases challenging the legality of the Sherman Antitrust Act. In response, President Roosevelt famously said, “Out of a banana I could carve a firmer backbone.”

Dwight D. Eisenhower claimed his appointments of Earl Warren and William Brennan were the two biggest mistakes of his presidency. Both appointments added to the 1960s’ strong liberal court. Warren, as Chief Justice, oversaw a court that fought against racial segregation, banned school prayer, and advocated for individual rights against the federal government. Brennan supported affirmative actions and voted to overturn flag-burning laws.

Republican President Richard Nixon appointed Harry Blackmun in 1970. Blackmun turned around to support a woman’s constitutional right to an abortion in the 1973 Roe v. Wade case.

Justice Anthony Kennedy, our current swing vote, was appointed by Republican President Ronald Reagan. He has been at the forefront in advocating for gay rights, the elimination of the death penalty for juveniles, and banning prayer at school graduation.

Republican President George H. W. Bush appointed David Souter in 1990. Souter voted liberally in areas of abortion rights, securing affirmative action, and limiting the death penalty.

Bad Timing

Democrats have a stronger record of bad timing. Compared to their Republican counterparts, Democrats have been less strategic in nominations and in the timing of judicial retirements. For example, President Johnson nominated Abe Fortas for the Supreme Court, highly due to his personal relationship with him as his former personal lawyer and friend. The Senate jumped all over this relationship and ultimately defeated the nomination. By the end of the dragged-out process, President Johnson no longer had time to make another nomination. The task ultimately was left to his successor, President Richard Nixon, who nominated strong conservative Warren Burger.

Other justices fail at timing their retirements. Liberal Justice Thurgood Marshall refused to retire toward the end of his career while Democrat President Jimmy Carter was in office. Consequentially, Republicans won the next three presidential elections and Marshall was forced to leave his seat to Republican Clarence Thomas. This also occurred with Hugo Black replacing Lewis Powell.

Possible Upcoming Transitions

As of today, no Supreme Court Justice has announced plans for retirement. However, some seem to be nearing the end of their careers, solely based on age. Justice Ginsburg is the oldest at 81. Not far behind are Justices Breyer and Kennedy, both 78, and Justice Scalia at 75. Will Justice Ginsburg retire under President Obama in a strategic move? According to Erwin Chemerinsky, Dean of the law school at the University of California, the “best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor.” Many factors play into this decision, such as the 2016 presidential election. Also that the Republicans currently have a Senate majority. The next nominations are more important than ever as so many cases are decided by a swing vote.

Conclusion

Some people don’t agree with partisan politics being weighed so heavily in the judicial branch of our government. And maybe they shouldn’t. But that doesn’t change the consideration and strategic thinking that go into Supreme Court nominations. As serious as the matter is, and with all the input and advice sought, mistakes are still made. Successful nominations as well as regrets have helped shape this nation for better or worse. Only time will tell what is to come for our next group of Supreme Court Justices. It will be interesting to see what moves are made by the upcoming retiring justices, Senate, and future president .

 Resources

CQ Press: The Selection and Confirmation of Justices

American Government: How Judges and Justices Are Chosen

Inside Gov: Compare Supreme Court Justices

The New York Times: Major Supreme Court Cases of 2015

The New York Times: The Supreme Court Blunder That Liberals Tend to Make

Supreme Court: Biographies of Current Justices of the Supreme Court

Time: Four Enduring Myths About Supreme Court Nominees

USA Today: Justices Sometimes Regret Justices They Appoint

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

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