2016 2016: Q&A on the legacy of Justice Antonin Scalia

UMass Law professors Richard Peltz-Steele and Dwight Duncan offer their reaction to the passing of Supreme Court Justice Antonin Scalia

UMass Law professors Richard Peltz-Steele and Dwight Duncan offer their reaction to the sudden passing of Supreme Court Justice Antonin Scalia, including thoughts on the legacy of Justice Scalia and the future makeup of the Supreme Court.

How would you define the legacy of Justice Scalia as a legal thinker?

RPS: Some people loved Antonin Scalia, and others loved to despise him, but everyone paid attention to him.  He was larger than life, which is very unusual for the reclusive Supreme Court in its history and even today in our world of 24/7 electronic media.  He was confident and outspoken in his convictions, which was off-putting to some, if not sometimes enraging.  He was criticized as closed minded, and in some respects, he was.  But his belief system was not arbitrary or selfish. Rather, he was informed by strident loyalty to a consistent ideology about constitutional democracy and the responsibility of the judiciary.  

DD: Justice Antonin Scalia, who was appointed to the U.S. Supreme Court by President Reagan in 1986, and confirmed unanimously at the time by the U.S. Senate—an amazing fact, given subsequent developments—served for almost 30 years as the conservative anchor of the Court.  He was brilliant, combative, humorous: an eloquent proponent of originalism, the view that the Constitution should be interpreted as it was understood when it was enacted.  He preferred clear rules of law, whether constitutional or statutory, to fuzzy and vague standards, and thus had little patience with judicial balancing tests.  He viewed the idea of the “living Constitution” as an invitation for judges to substitute their shifting personal or ideological views for democratically-enacted legislation. He advocated reading statutes the way they were written, textually, and not cherry-picking “legislative history” from statements made by legislators.

He famously clashed with the Court’s swing votes over the years, notably Justice Sandra Day O’Connor and Justice Anthony Kennedy, who were also Reagan appointees.  At the personal level, though, he was close friends of liberal Justices Ruth Bader Ginsburg, with whom he rarely agreed in decisions but shared a love of opera, and Obama appointee Elena Kagan, whom he took hunting.  He wrote the 5-4 majority opinion in District of Columbia v. Heller, the famous decision interpreting the Second Amendment as an individual right to keep arms, rather than connected with military service.  Interestingly, the dissent by Justice John Paul Stevens also employed an originalist analysis, a kind of back-handed tribute to the intellectual power of Scalia’s originalist philosophy. 

As Justice Elena Kagan said of Scalia when she was dean of Harvard Law School before joining the Court, “He is the justice who has had the most important impact over the years on how we think and talk about law.”  He was also instrumental in the early growth and development of the Federalist Society, which became an extraordinarily influential presence among lawyers and law students. On a personal level, among my admittedly modest professional achievements was having one of my amicus briefs on behalf of the Pro-Life Legal Defense Fund over the years cited favorably in Justice Scalia’s dissent in Gonzales v. Oregon in 2006.   

It was written in 2011 that Justice Scalia was “the most influential justice of the last quarter century.”  Do you agree?

DD: Absolutely.  If anything, Judge Richard Posner’s assessment understates the case for Scalia’s influence, which has been dominant for now thirty years.  Perhaps in the past half-century it can only be compared with Justice William Brennan’s influence during the liberal Warren Court of the 60s.  For a few years, they were both on the Supreme Court together, but represented polar-opposite judicial philosophies:  originalism v. the living constitution.   

His personality, but also his writing, have been remarked about most since the announcement of his passing. Can you discuss the influence of the mind and pen of first Italian-American to sit on the nation's highest court?

RPS: I have taught many of Justice Scalia's writings in constitutional law, and indeed just last week taught a torts case from earlier in his career, when he sat on the D.C. Circuit Court of Appeals.  His writing was colorful. Even when re-mastering clerks' draft opinions, he infused them with his own sly humor. That and a gifted legal mind to craft razor-sharp argument makes his work a joy to study and read and a challenge to dissect and critique, regardless of one's agreement with his methodology or conclusions. 

His critics might hold him up as a turning point on Supreme Court jurisprudence when the gloves were taken off and the storied institution of the Court was sullied by vituperative commentary.  I agree on the turning point.  But I prefer to think that Scalia brought a gust of needed New York air--fresh from the seaside, if tinged with some city exhaust--into what had become one of D.C.'s stuffiest and detached institutions.

DD: I think in intellectual stature and writing ability he can only be compared to Justice Oliver Wendell Holmes, who was also famous for his dissents and who sat on the Supreme Court from the presidency of Theodore Roosevelt to the presidency of Franklin Roosevelt.  Justice Scalia, though, was a Catholic of Italian heritage. His father was a professor of Romance Literature at Brooklyn College, and Antonin Scalia inherited an Italian love of words with a certain theatricality of style quite different from the Waspish Holmes. They both shared a desire to affirm democratically-enacted legislation, at least when express constitutional provisions, most notably the First Amendment freedom of speech, were not at issue. For instance, Scalia voted to declare bans on flag burning unconstitutional under the First Amendment. One area where Homer may have nodded, though, is the First Amendment’s free exercise clause, which Scalia in the 5-4 1990 case of Employment Division v. Smith ruled was only implicated by laws or regulations directly targeting religious activity as such, but not by rules of general applicability. The result was Congress passing by virtual unanimity the Religious Freedom Restoration Act, which attempted to restore the previous strict scrutiny to laws significantly burdening religion even though they weren’t targeted at it.  

How will his passing impact the future makeup of the Supreme Court?

RPS: In the short term, there are many important pending cases this very term that were predicted to come out 5-4, including, for example, Fisher II, the latest test of affirmative action by the University of Texas.  Of course no one can know for sure, but the pundits predict that some of these cases will slip into a 4-4 deadlock without Scalia's vote.  Fisher II itself was a win for Texas in the lower court, and Scalia was expected to push the Court majority to overturn.  A 4-4 tie results in the lower court decision being upheld, so Scalia's absence will be felt immediately where such questions are in play. 

However, when a justice is taken out of service for whatever reason, it's not uncommon for the Court to order a case to be re-argued, so that a replacement justice can participate.  The President has announced his intention to make a nomination promptly to fill Scalia's seat on the Court, but we don't know yet how that nomination will fare in the Senate.  The threat of losing some cases because of 4-4 affirmance might prompt Senate Republicans to roll the dice with the President's nominee, or Republicans might hold fast for the election, as Republican leaders have preliminarily indicated.  It's unclear whether re-argument would be practical if the nomination process is indefinitely stalled.  These are exciting times for Court watchers, and real people's interests and rights are hanging in the balance of this political drama.

The longer term impact on the Court will depend in large measure how this drama plays out.  But if we can possibly set politics aside, for the sake of argument: I hope that the influence of judges such as both Scalia and Sotomayor will have a long-term impact on the Court by showing our political leaders the wisdom of installing on the Court people who were reared with working-class values.  The judiciary is too easily perverted to be a club of the intellectual class and political elite, and that judiciary fails to express the values of ordinary Americans. 

The Court is only indirectly a democratic institution, for good reason.  But that makes it all the more important that its democratic roots be fed with the real-life experiences of American people who grew up on the American street--not in towers of ivory or gold.  Scalia brought the court the Italian immigrant experience, which represented a unique installment in the American story.  I hope the lesson of his singular service is that our Court should continue to tell that story.

DD: That depends very much on what happens with his replacement.  A number of important recent precedents, including the Second Amendment Heller decision, the First Amendment Citizens United case, which declared unconstitutional limits on independent political expenditures by corporations and unions, and the Religious Freedom Restoration Act’s Hobby Lobby decision, which said that closely-held for-profit corporations could claim exemption from Obamacare’s contraceptive mandate, were 5-4.  Justice Scalia’s votes were decisive in all these cases.  The Supreme Court is now split 4-4 on these and other questions.  Their precedential value is thus up for grabs. 

It looks like President Obama will have a colossal struggle on his hands with the Republican-dominated Senate in getting his nominee to replace Scalia confirmed during this election year.  The Senate leadership and the Republican candidates for president have all announced their opposition.  President Obama is now a lame duck, and perhaps the example of what happened to Lyndon Johnson’s nominee to replace Earl Warren as Chief Justice in 1968 with Johnson’s old lawyer Supreme Court Justice Abe Fortas is a cautionary tale. Though a master politician, Johnson was unable to get Senate confirmation, and thus the appointment of Chief Justice Burger fell to Warren’s old nemesis, Richard Nixon, after Nixon became president in 1969. 

The stakes are unquestionably high.  It is one thing for Obama to replace a liberal with a liberal, but quite another to replace the Court’s leading conservative Justice with an Obama-style liberal in an election year, which would dramatically shift the balance of power on the Supreme Court. I anticipate a fight to the finish here. Even the possibility of a controversial temporary recess appointment to the Supreme Court, as happened in the 1950s when Eisenhower first appointed William Brennan, cannot be ruled out.  

About Richard Peltz-Steele

Professor Peltz-Steele received his law degree from Duke University and a bachelor’s in journalism and Spanish from Washington & Lee University. Professor Peltz-Steele has won awards in teaching, research, and public service. He practiced commercial law in Baltimore and Washington, D.C., and taught law for more than thirteen years before coming to UMass Law.

Professor Peltz-Steele is author or co-author of qualitative and quantitative research articles in law and mass communication journals, as well as book chapters, a treatise in the law and mass communication field, a casebook in tort law, and a casebook in freedom of information law and policy. He is especially active in international media law and policy, having presented papers in Ireland, Malaysia, and South Africa, and having published in international and foreign journals, recently regarding privacy regulation in the European Union and indigenous identity in news reporting. He has served in various capacities for the American Bar Association, including the Tort Trial Insurance Practice Section committees on media and international law.

About Dwight Duncan

Professor Duncan teaches courses in Constitutional Law, Legal Ethics, Religion and the Law, and Bioethics. His interests include legal history and legal philosophy. He is an honors graduate of Georgetown University Law Center. A native Washingtonian, he practiced law there with the telephone company, now part of Verizon. Professor Duncan has written articles on legal, moral, and religious issues. He has argued several cases before the Massachusetts Supreme Judicial Court and the Appeals Court and has written briefs for the U.S. Supreme Court. He is a member of the Massachusetts and Washington, DC bars, the Board of Directors of the Pro-Life Legal Defense Fund, and serves on the Board of Advisors of Massachusetts Citizens for Life.

For more reaction from UMass Dartmouth faculty on the passing of Justice Scalia, click here.