Why Finding a Successor for Justice Scalia Will Be a Challenge

supreme court

U.S. Supreme Court Justice Antonin Scalia, who died last weekend in Texas at age 79, has left a legacy of commitment to “textualism” and “originalism” that overrides legislative history in interpreting statutes and the Constitution, according to experts at Wharton and the University of Pennsylvania Law School. While many of Scalia’s opinions aligned with conservative policy views, especially on gay rights and abortion, he would have made a “secular argument” for them, they said.

Scalia, who spent 30 years on the Supreme Court, was also “a lover of democracy,” and supported diversity in the composition of justices, the experts noted. Now, as President Barack Obama and the Republican Party clash over appointing a successor to Scalia, they warned of the dangers of a 4:4 split in court decisions until the vacancy is filled.

Justice Scalia has left a legacy in three areas, according to Eric Orts, Wharton professor of legal studies and business ethics. “One [is] his commitment to what is called ‘textualism’ – looking at the statute itself and its language to determine how to decide a case,” he said. “Two, he very much disagreed with the idea of looking to legislative history to interpret a statute. He rightly felt that much of that legislative history was manufactured by lobbyists or politicians to slant how [the statute] is interpreted.”

Finally, Scalia advocated “originalism,” where instead of interpreting Constitutional provisions or rights, he would look at what the authors of the Constitution or the statute actually intended, said Orts. “You don’t have the idea of a living Constitution where you have changes – this is what leads to some controversial decisions. Instead you look to what he called the ‘Dead Constitution,’ or what the founders said.”

“[Scalia] rightly felt that much of that legislative history was manufactured by lobbyists or politicians to slant how [the statute] is interpreted.” –Eric Orts

According to Cary Coglianese, professor of law and political science at the University of Pennsylvania Law School, “One theme that is underappreciated is how much Justice Scalia was a lover and believer of democracy.” He said Scalia wanted to be “faithful to the democratic process in making the judiciary more humble and limited.” That approach underpinned his commitment to originalism in the constitutional area and textualism in the legislative area, he added.

Orts and Coglianese discussed Scalia’s work and legacy, and the need to soon resolve the controversy over his successor, on the Knowledge@Wharton show on Wharton Business Radio on SiriusXM channel 111. (Listen to the podcast at the top of this page.)

An Enduring Legacy

“[Scalia] had a tremendous impact on the way lawyers and judges think about the law,” said Coglianese. He noted that Scalia may have had more influence in promoting textualism in reading statutes than with originalism in interpreting the Constitution. “But he certainly made that the approach to constitutional interpretation that everyone has to grapple with. He said we shouldn’t delve into the legislative history [but should] focus on the text of the statute and what it means, relying on dictionaries and the plain meaning of these terms. That has been tremendously influential.”

According to Coglianese, three factors define Scalia’s legacy for the legal system. “One, the longevity that he had in court — 30 years of service. Second the fact that he was not afraid to speak up during oral arguments, [and] not afraid to make his points known, even in dissent. The third was he was just incredibly smart — an incredibly bright lawyer, [and a] super intellect that constructed arguments in defense of originalism and textualism that won a lot of people over.”

Conservative Ideology or Pure Jurisprudence?

Even as many of Scalia’s opinions matched conservative views, “he would have had a secular argument pointing to the theories of democracy and legal theory,” said Orts. Specifically on his opinion in the gay rights case, Scalia would have maintained that his view was “not a religious issue but a jurisprudential issue, [and] that you don’t find a new right under the Constitution in this way.” Scalia dissented in the landmark Obergefell v. Hodges decision (5-4) in December 2015 that granted same-sex couples throughout the U.S. the right to marriage.

Scalia “surely was not supportive, as a policy matter, of certain socially liberal or progressive issues,” said Coglianese. “Some of his judicial theories aligned with those [conservative] policy views. I don’t know that they drove them.”

Although Scalia had conservative views, he made a departure in supporting the regulatory state in matters impacting the business community, according to Coglianese. “In a number of key decisions that he authored in the majority, he supported the power of administrative agencies in ways that don’t align, maybe, with the broader conservative agenda. He adopted a series of opinions expressing the view that the judiciary should be in the backdrop.” He explained that Scalia felt that the judiciary should settle cases where the rule of law was clear, but otherwise let the legislature rule. “If the legislature delegates authority to administrative agencies to regulate business, he was supportive of that.”

“[Scalia] was a very complex man, and that is one of the reasons why he was so influential.” –Cary Coglianese

Coglianese said it was “somewhat ironic” that Scalia believed that the judiciary should be humble “when he was himself someone who could be very flamboyant and combative.” At the same time, Scalia was also “incredibly charming and deep down a good person. He was a very complex man, and that is one of the reasons why he was so influential.”

Scalia advocated diversity among court justices, said Orts, referring to a recent New York Times report on what kind of a person he might have wanted as his successor. Scalia had noted that four of the nine justices in the current Supreme Court hailed from New York, and that there were too many judges from the east coast and none from the Southwest, the report said. Coglianese added that Scalia “was [also] very much concerned about important decisions for the country being made by unelected judges.”

What Next – and Who?

The challenge now is about how best to go about appointing a successor to Scalia. President Obama wants to nominate a successor, but the Republican-controlled Senate has vowed to block his nominee – and perhaps not even allow it to get to the point of a vote in the Senate. The Republicans want to wait until a new president is elected and takes office in January 2017. That would leave the Supreme Court with eight judges.

Orts pointed out that in the event of a 4:4 split on some big cases that are in line to be heard, the lower court’s opinion would prevail. “In cases where you might have expected a 5:4 majority, [the court will] uphold decisions that you might not have wanted,” he said. Coglianese noted that the important cases before the current Supreme Court include “most of the hot-button issues in America today: affirmative action, abortion, immigration and an important case on unions and labor rights.”

“If Obama names a conservative nominee, and the Republicans still don’t want to have review hearings, they will look even more obstructionist than they look right now.” –Cary Coglianese

Orts likened the stance of Republican presidential candidate Ted Cruz in making the issue of appointing Scalia’s successor “the centerpiece of his campaign” to “a shut-the-government-down-approach.” He suggested that it may be unreasonable to hold up the appointment process until next January, noting that most confirmation hearings take between two months and 100 days. “It very well could be that we have an unprecedented lockup of this appointment process,” he said.

Obama’s Choices

Orts expected the Obama administration to name as Scalia’s successor “a relatively Conservative, middle-of-the-road candidate.” He said his pick is Sri Srinivasan, who is now the judge of the U.S. Court of Appeals for the District of Columbia Circuit. He noted that Srinivasan is Indian American who grew up in Kansas, secured his J.D. and MBA from Stanford University, and was confirmed by the Senate 97-0 as recently as in 2013. “You put someone like that, and over time, it becomes very difficult to say – ‘What’s wrong with this guy?’” he added. Other names making the rounds are those of current attorney general Loretta Lynch and Judge Paul Watford of the Ninth Circuit.

“If Obama names a conservative nominee, and the Republicans still don’t want to have review hearings, they will look even more obstructionist than they look right now,” said Coglianese.

Orts hoped for the best. “It would be good if both sides come together and have some more agreement about trying to confirm each other’s picks as long as they are within the zone of competence and achievement that you want.”

Perhaps the two political parties could take a leaf from Scalia’s book itself. “One of the small ironies of this particular contest over who will replace Justice Scalia is that in some of his dissenting opinions he changed the tone of judicial discourse,” noted Coglianese. One study showed that Scalia’s opinion made up more than half the uses of sarcasm in judicial opinions of the Supreme Court. “He was prone to calling his colleagues’ opinions ‘nonsense,’ ‘pretentious,’ ‘egotistical,’ ‘gobbledygook,’ etc.,” he added.

All said, Scalia has clearly left big shoes to fill. Whoever fills this vacancy or even the next one or two vacancies in court, it will be a long time before we have someone of Justice Scalia’s intellectual stature,” said Coglianese.

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