As you know, on Saturday Justice Antonin Scalia passed away during a quail hunting trip in West Texas. Nominated to the Supreme Court in 1986, Scalia was known as a jurist of captivating brilliance and wit, as well as a leader of conservative intellectualism.
As his absence is being mourned around the country, political figures and media have already started hypothesizing what his death means for the highest court in the land. A decision from the current makeup of the court (unlikely to be altered anytime soon) could mean wildly different verdicts for prominent class action cases like Spokeo v. Robins or Tyson Foods, Inc. v. Bouaphakeo, as well as for the EPA’s Clean Power Plan which (if tied) would make the D.C. Circuit’s decision law of the land with a reach that other cases won’t have. But today we remember the man who left such an indelible mark on the U.S. legal landscape and the legacy he leaves behind, even if it wasn’t always the one some wanted.
“The most influential justice of the last quarter century”
“Whether you agreed with his views or not, he was in my estimation the best writer of legal opinions that I have ever read. Period,” writes Francis Pileggi on the Delaware Corporate & Commercial Litigation Blog.
It’s a sentiment being echoed around the country. As Scott Key notes on the Georgia Criminal Appellate Law Blog, Scalia’s judgments were divisive. But you cannot deny the intelligence of the man behind them:
When I was a law student, Scalia opinions were the first ones I remember reading and enjoying. I won’t say that I agreed with them all. But they were all brilliant. And his originalist philosophy was always consistent. So, occasionally it took him to pro-defendant places. Crawford v. Washington is the first one that comes to mind.
…In a while, I will start to think about what is next. But today I reflect on the end of an era.
On the Connecticut Employment Law Blog, Daniel Schwartz shares a similar view, thinking through Scalia’s complex employment decisions throughout his tenure on the high court. In his post, Schwartz reflects on a lunch during a Young Lawyers’ Section of the Connecticut Bar Association where Scalia was a distinguished speaker:
I remember my parents were a bit puzzled at my excitement over the prospect of lunch with Justice Scalia. But I explained to them, that my excitement wasn’t because I agreed with all of his decisions or logic. I was looking forward to it because whenever there was a new case released, I would typically read his decisions (and often dissents) first.
Because to read his decisions was to appreciate a craft of writing that I could never even hope to replicate. Even on the many decisions of his that I disagreed with, I wanted to read his dissents to see what the weaknesses were in the majority’s arguments.
…So when I look back on Justice Scalia’s legacy, I’ll remember more than his well-written decisions. I’ll remember that lunch 10 years ago. I’ll remember talking with him about how he thought it completely logical that the court was decide cases only by looking by the text of the U.S. Constitution. I’ll also remember a man during that lunch who was charming, witty and willing to share a good story with others.
And I’ll remember how fortunate I was to have broken bread with him.
Where he’s left us
Of course some have already turned their eyes to the hole that Scalia has left in the Supreme Court. Very quickly after the death was confirmed, prominent figures on both sides of the aisle began figuring out what it would take to get a nomination through. In response, President Obama announced that he will be making a new nomination before he leaves office in January of next year. Many Republicans have, in response, already called for the decision to be made by the next Commander-in-Chief, even if it takes a filibuster.
Though the average length of time from nomination to confirmation has grown longer with each decade, the Senate has never taken more than 125 days to vote on a successor. However with the contentious political climate being what it is, it’s unlikely that the Supreme Court will have a full bench before the end of their current term in June. As such, Gerald L. Maatman, Jr., Christina M. Janice,Michael W. Stevens, and Kylie R. Byron provide a round-up of high profile cases currently on the docket for the Workplace Class Action Blog, as well as note the change in the ideological makeup of the court now:
[T]he previous ideological makeup of the Supreme Court — generally thought of as five conservatives and four liberals — now has shifted to an even split between conservative and liberal Justices as the work of the Supreme Court continues. This tenuous balance likely will change again, but the complexion of the Supreme Court largely will depend on whether President Obama is able to secure the confirmation of a replacement, or if the vacancy remains open through the upcoming presidential election. Whether President Obama or his successor nominates the next Justice may influence the direction of the Supreme Court for years or decades to come.
…Given the political showdown that is all but sure to consume the White House and Congress, it is substantially likely that several important decisions will be split on a 4 – 4 vote. When the Supreme Court is equally divided, the lower court ruling remains in place but no national precedent is set. Thus, several rulings this Term that were expected to change American law instead may only extend the status quo.
Moreover, Justice Scalia’s death affects more cases on the Supreme Court’s docket than those that have yet to be argued, or voted upon by the Supreme Court. His death also affects cases where oral argument has taken place, but rulings have not yet been issued. His previous votes in any such cases no longer count. Thus, if a preliminary vote on a case was 5 – 4 with Scalia in the majority, that opinion would have provided national precedent. Now, with his vote eliminated, a 4 – 4 decision emerges that does not affect the state of the law.
The loss of Justice Scalia’s voice as a staunchly nuanced conservative on the bench means many cases’ odds are in an adjustment period. Already his absence could mean radically different outcomes for teachers unions and the Clean Power Plan, which after a surprise stay last week could result in a favorable verdict from the D.C. Circuit.
“Last Week, in the first time in history the Court issued a stay of the effectiveness of the rule while the rule was still under challenge in the lower D.C. Circuit Court of Appeals…The stay was issued in a 5-4 decision along ideological lines. It seemed likely that the Court’s ultimate decision as to the legality of the rule would be issued along similar ideological lines,” wrote Joe Koncelik for the Ohio Environmental Law Blog. “With developments over the weekend, it appears the most significant piece of environmental regulation in decades may have new life.”
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Though successors and strategies may already be being discussed around the nation, Scalia’s influence will still be felt in the coming months, and beyond. He remains a polarizing figure, even in death, but as fellow Justice and friend Ruth Bader Ginsburg notes, as a sharp legal mind his death was a loss to us all.
“We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation…Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh,” said Ginsburg. “It was my great good fortune to have known him as working colleague and treasured friend.”