The unexpected death of Antonin Scalia ends the long and consequential career of a powerful, intellectually gifted, caustic, conservative thinker who influenced not only the Supreme Court but also the nation -- occasionally for good, more often for ill.
In his rulings and writings, the former law professor and Justice Department official did much to rehabilitate the approach to constitutional interpretation he called “originalism” -- the debatable notion that the Constitution should be interpreted according to the meaning attached to its provisions at the time they were adopted. He had scorn for the idea of a “living Constitution,” which he saw as promoting rigidity, not flexibility, in the law.
“My constitution is a very flexible one,” Scalia said in a speech at Princeton University in 2012. “There’s nothing in it about abortion and since there isn’t, it’s up to the citizens. Things change by democratic choice. The Supreme Court doesn’t have to abolish the death penalty. If the feelings of society come against it, it will be abolished by the states.”
That approach sometimes led him to decisions that bolstered individual rights, including freedom of speech, the privacy of the home and the right of criminal defendants to confront witnesses against them. It’s sometimes forgotten, for instance, that he joined liberal justices in protecting the right to burn the American flag as a political protest.
But he was unwilling to recognize fully that some of the Constitution’s guarantees are couched in broad terms -- such as “liberty,” “due process of law” and “equal protection” -- that must be adapted by the courts to changing times. Thus Scalia opposed Roe vs. Wade, the decision upholding a woman’s right to choose abortion, and he rejected, often in offensive language, the notion that equal justice under law also applies to gays and lesbians. Thankfully, he was unable to persuade a majority of the court to agree with him on those two issues.
When he dissented last year from the court’s landmark decision recognizing a right to marriage for same sex couples, Scalia insisted that the substance of the court’s ruling “is not of immense personal importance to me” –- a disclaimer that was hard to take seriously. In that case, as in others, Scalia’s political and social conservatism seemed to shape his legal arguments. Indeed, especially in his later years, his increasingly sarcastic comments in writing and from the bench seemed to echo the rhetoric of radio talk show hosts.
The list of subjects on which we disagreed with him is enormous. He will no doubt be remembered for his intellectual gifts and his irrepressible personality, but he was also part of a 5-4 conservative majority that gutted the 1965 Voting Rights Act, established an individual right to bear arms under the 2nd Amendment and ruled in the Citizens United case that corporations had a right to spend unlimited amounts to influence elections. He opposed affirmative action, supported the death penalty, defended putting crosses on public land and vehemently dissented in the case that ruled Obamacare's individual mandate constitutional.
These were wrongheaded positions that in many ways damaged the country, especially in recent years when Scalia was part of a clear conservative majority. His death puts that majority in jeopardy, which is why replacing him is certain to be a politically contentious process. All the more so in a wild and unpredictable presidential election year, when both Republicans and Democrats are sure use the vacancy on the court to inflame the passions of their political supporters.
Republicans are already arguing that the choice of Scalia’s successor should be left to the president who will be elected in November. "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president," Senate Majority Leader Mitch McConnell of Kentucky said in a statement.
That is an irresponsible position. Leaving a Supreme Court seat vacant for a significant part of two court terms just because the president is in his last year of office is cynical and transparently partisan, founded on the hope that the election will deliver a Republican president who'll pick a more conservative jurist than President Obama would.
For his part, Obama said Saturday that he will fulfill his constitutional obligation to offer a qualified nominee to fill this vacancy "in due time." And the Republican-controlled Senate has an equal obligation to give that nominee full, fair and expeditious consideration –- and an up-or-down vote.