As a vocal and consistent critic of Justice Scalia for over two decades, and as someone who publicly called for his retirement just a few months ago, I am surprised by my conflicting feelings of loss and hope. As a liberal, I won’t miss his votes. As a constitutional scholar, and Supreme Court commentator, I am already a bit nostalgic for his passion, pen, and theatrics.
Just a few hours after his death the enormous implications of his demise are already being played out by the Senate majority leader. Mitch McConnell says the Senate will not approve a nominee to replace Justice Scalia and the president says he will nominate someone anyway. Supreme Court experts are already wondering what the Justices will do with the important cases on abortion, affirmative action, immigration, voting rights, and free speech on the docket this term. One thing is certain, this country has never before seen a Supreme Court vacancy during the waning months of a two-term presidency with an evenly divided Court and landmark constitutional cases yet to be decided. Will the Justices put some of these cases on hold until a replacement is found? What if they divide four-to-four on that question? We are in unexplored territory.
But, those questions can’t be answered today or even this week. Moreover, I can’t help feeling that the immense political reaction to Justice Scalia’s death is in some way disrespectful. The news cycle can indeed be cruel.
Even his opponents would have to concede that Justice Scalia was a dedicated public servant and one of the most influential Supreme Court Justices in history. A great writer with a flair for wit and biting sarcasm, he changed the way judges and scholars thought about constitutional law by making the doctrine of “originalism” legitimate. He was a hero to conservatives across the land for almost three decades.
He was also an easy target for liberals and progressives to attack with relish. Although he occasionally deviated from his conservative colleagues with support for criminal defendants and free speech rights, he reliably voted against abortion rights, affirmative action, voting rights, and most civil rights. With his stridency and his dogmatism, Justice Scalia was easy to hate which it easier for liberal critics to vent their frustration with the Rehnquist and Roberts Courts with equal stridency and dogmatism. His extreme views often brought out the same in those who wrote about him. If Scalia could hurl insults at his fellow Justices, we could certainly aim some at him. Justice Alito, as conservative as or more so than Scalia, simply does not ignite the same emotions.
Over the last few years, Justice Scalia would go around the country giving talks to students and other groups advocating his originalism. He would rant that the Constitution is “dead, dead, dead,” and that judges shouldn’t create new rights to abortion and same-sex marriage not found in the Constitution’s text. His passion was high but his votes for states’ rights also not found in the Constitution’s text undercut his arguments. But he fueled an important debate about the proper role of the Supreme Court in our government, and not just among lawyers and judges.
With Justice Scalia’s passing, the Supreme Court is now staffed by four reliable liberal votes (Ginsburg, Breyer, Kagan and Sotomayor), three reliable conservative votes (Thomas, Alito, and Roberts), and one moderate conservative vote (Kennedy). If a liberal ends up replacing Scalia (either this term of after the election if a Democrat wins), abortion and affirmative action rights would be secure, voting rights more likely, and free speech for dissenters, unions, and minorities better protected. With one more liberal vote, Citizens United is likely to be diluted and gun control laws easier to defend. I have advocated strongly for all of those results.
Yet, I can’t help feeling this country has lost something important that won’t be easily replaced. Scalia, for all of his faults, brought something special, no unique, to the role of Supreme Court Justice. As an advocate and a public figure, he was a huge figure both polarizing and inspiring. He did nothing half-way and he certainly made the Supreme Court a more visible public institution.
In some important ways, our country is much better off without him on the bench. But, in other ways, it is fair to say, even for liberals, Justice Scalia will be missed.