The death of Supreme Court justice Antonin Scalia on the morning of February 13 triggered an immediate political firestorm. Party-line politics, debates on the man’s legacy, and conspiracy theories have been swirling in the media in the days since. No doubt his death is of great consequence, but the reactions reveal a great deal about the brokenness of our political-media establishment.
As is custom in polite American society, coverage of Scalia’s death has been largely uncritical, except to criticize those who were pleased by it. The liberal Washington Post summarized Scalia as “known for his elegant legal opinions and profound intellect.” A New York Times obituary heralded him as “a champion of interpreting the Constitution as it was understood at the time of its adoption” and praised Scalia’s “transformative legal theories, vivid writing and outsize personality.”
There’s no denying the influence and impact of Scalia’s 30-year tenure on the bench. But there’s also no denying that, for large segments of the American population – LGBT people, women, environmentalists, immigrants and laborers, particularly – his reign was one of terror. For all his claims of Constitutional originalism Scalia was one of the court’s most activist judges, regularly bringing his prejudices and far-right proclivities to bear on cases he decided.
Among the court’s most notorious decisions with Scalia in the majority are Bush v. Gore, the Supreme Court case which essentially gave us George W. Bush’s presidency; Burwell v. Hobby Lobby, which granted corporations exemption from certain laws on religious grounds; and of course, the famous Citizens United case which allowed corporations to spend unlimited amounts of money on Super PACs during elections, essentially legalizing money in politics. Just before his death he also voted to suspend the Clean Power Plan, a life-saving environmental initiative.
Much of his vaunted strict constitutional originalism revolved around leaving decisions up to the states. When the Supreme Court made gay marriage the law of the land, for instance, Scalia wrote a blistering dissent, saying, “I write separately to call attention to this Court’s threat to American democracy… Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.”
Similarly, in a case that challenged Pennsylvania laws requiring women to meet certain provisions to obtain an abortion, Scalia wrote, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Americans really aren’t being given much time to digest Scalia’s legacy, though. Within hours of his death becoming news, Republicans insisted that President Obama not appoint a replacement, and this has become the latest hot-button political brouhaha.
Article II, Section 2 of the US Constitution reads in part, “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” President Obama clearly has the authority, if not the duty, to nominate a successor to Scalia. Yet Republicans maintain there is a “tradition” of presidents not appointing justices during elections years and are calling on Obama to hold off.
In truth there is no precedent, legal or otherwise, for such a delay. A court vacancy in an election year doesn’t arise all that often. Seven presidents have been put in the position since 1900. Six of them appointed justices who were eventually confirmed. The exception came in 1968 when Lyndon Johnson attempted to nominate Abe Fortas to succeed Earl Warren. Republicans filibustered and Warren remained on the bench. Only the obstructionism has any precedent.
Obama is pledging to make an appointment. Several names have been rumored, all of them qualified and more or less conventional, as expected of the Supreme Court. Obama called on the Senate to do its job and consider his nominee, accusing Republicans of having the attitude, “If we don’t like the president, we’re just not going to let the president make any appointments… This has become a habit and it gets worse and worse each year.”
Worse than obstructing him, many on the right actually believe Obama may have had direct involvement with Scalia’s death. Talk radio and the conservative blogosphere are promoting a conspiracy that Scalia was murdered. Apparently there is something fishy to them about the overweight 79-year-old’s death by heart attack.
Right-wing shock jock Michael Savage, among the most vitriolic in his profession, hosted GOP frontrunner Donald Trump and presented a smoking gun: Scalia was found with a pillow over his face. The implication is that an Obama goon smothered the justice. One would think the president could access more professional hitmen. But the real smoking gun that suggests there was no foul play is that Scalia’s own family chose not to have an autopsy.
Until a replacement is appointed, the Supreme Court will be evenly divided between four conservative “originalists” and four liberal justices who view the Constitution as a “living document.” This court will hear several important cases on immigration, abortion, labor law, the environment and more. Any tie decision they come to will offer no precedent and will be as though the hearing never happened. Even in death Scalia is impeding progress.