The late Justice Antonin Scalia of the United States Supreme Court died Feb. 13, throwing the United States’ political system into even greater turmoil in what already was an unusually chaotic election campaign. As a part of the Court’s conservative wing, Scalia was tremendously impactful in the shaping of Supreme Court jurisprudence — including on an issue that is directly relevant to Alabama: namely, the question of voting rights, as dealt with in the landmark case of Shelby County v. Holder.
Antonin Scalia was a dominant force on the nation’s highest court — indeed, perhaps the single most dominant force over the course of his 30 years on the Supreme Court bench. Judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit, wrote in the New Republic in 2011 that he was “the most influential justice of the last quarter-century.” His major intellectual legacy was the widespread acceptance of the theory of Constitutional interpretation known as originalism, which holds that one should seek to apply the understanding of those who drafted and ratified the Constitution.
Beyond these technical and academic legal legacies, Scalia was renowned (and, by some of his critics, reviled) for the sometimes harsh, caustic language he often used when writing his opinions. One example of this was his dissenting opinion in the recent case of Obergefell v. Hodges, which legalized same-sex marriage nationwide, recognizing it as a Constitutional right by finding that same-sex marriage bans violated both due process and the equal protection clause of the 14th Amendment. In line with his originalist theory, he did not believe that the 14th Amendment as originally understood would have prevented same-sex marriage bans, and as such, they should not be considered unconstitutional today.
Scalia, criticizing Justice Anthony Kennedy’s majority opinion, wrote that it had “no basis” and “lack[ed] even a thin veneer of law,” and that it “descend[ed] from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
He wrote, “If I ever joined an opinion for the Court [like this one], I would hide my head in a bag.”
It has been commented by various prominent journalists who cover the Supreme Court — for instance, Dahlia Lithwick of Slate and Adam Liptak of the New York Times — that it was because of this fiery rhetorical streak that Scalia was known much more for his scathing dissents than for majority opinions, and that the chief justices sometimes avoided assigning him to write the Court’s majority opinion for this reason.
Scalia joined the majority opinion in the case of Shelby County v. Holder, which struck down as unconstitutional Section 4(b) of the Voting Rights Act of 1965. The act requires, in Section 5, that certain state and local governments — among them the State of Alabama — obtain federal “preclearance” for any proposed change to their voting laws or practices. Section 4(b) contained the formula that was used to decide exactly which states and other jurisdictions were obliged to submit to this preclearance requirement; the formula was based on data more than 40 years old, which was ultimately the reason for its demise.
The decision is broadly considered to have rendered the act effectively toothless, because now that the old formula no longer applies, Congress would have to devise a new formula and pass it into law, a situation seen by many as unlikely due to the general trend of inaction in Congress for many years now.
In the media coverage surrounding the Shelby County case, Scalia drew attention for one of his characteristically candid remarks about the decision. During oral argument before the justices, he said, referring to the fact that the law had been reauthorized by growing percentages of congressmen and senators, “Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called ‘perpetuation of racial entitlement.’ It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” Later on, he said that there were “certain districts in the House that are black districts by law just about now.”
In any case, the Shelby County case is a clear example of a time when the Birmingham metro area, and Alabama in general, crossed paths with Scalia and found him to be broadly sympathetic. A Reagan appointee, he was considered, along with Justice Clarence Thomas, to be the most conservative member of the Court.
In the current battle over the appointment of a successor to Scalia, President Obama has nominated Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit, a court that is often called the “second-highest court in the land” because of its role as the highest federal appeals court. Garland is widely viewed as a centrist, having been a federal prosecutor before his appointment to the D.C. Circuit, for which he was confirmed 76-23.
Utah Republican Senator Orrin Hatch, in an interview on March 13, three days before Obama nominated Garland, said that the president had told him several times that he was going to name a moderate to fill the vacancy, but Hatch said he did not believe him. “[Obama] could easily name Merrick Garland, who is a fine man,” but, Hatch said, “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [Democratic base] wants.”
Despite Hatch’s having been caught somewhat flat-footed in this instance, the Republican Senate continues to vow that they will not consider the president’s appointment, or even hold confirmation hearings. The Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various public officials, including Supreme Court justices. It would be interesting to be able to consult Scalia as to how he would apply his originalist theory of Constitutional interpretation in this instance. Bereft of that possibility, on the matter of this appointment, the American public will simply have to wait and see.