Texas Sen. Ted Cruz, a 2016 Republican presidential hopeful and himself a former clerk on the Supreme Court, posted a statement on Facebook mourning the death of “one of the greatest Justices in history.” Cruz said, “A champion of our liberties and a stalwart defender of the Constitution, he will go down as one of the few Justices who single-handedly changed the course of legal history.”
“My reaction is it’s very unfortunate,” Biery told the newspaper. “It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen until the next president is elected.”
President Obama could nominate a candidate to fill the vacancy, but winning confirmation by the Republican-controlled Senate in an election year would be difficult. The opening undoubtedly will fuel at debate in the presidential campaign about the importance of choosing his successor on a closely divided court.
The communications director for Sen. Mike Lee of Utah, a member of the Judiciary Committee, signaled the battle ahead. Conn Carroll posted on Twitter: “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia.”
Republican presidential hopeful Donald Trump posted a tweet that said, “The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!”
APPOINTED BY REAGAN
Scalia managed to steer the federal judiciary toward his twin theories of “originalism” and “textualism” — strictly reading the Constitution and federal statutes to mean what their authors intended, and nothing more. Yet he leaves with more disappoinments than achievements and a legacy written in acerbic dissents.
The first Italian-American to serve on the court when he was named by President Ronald Reagan in 1986, “Nino” Scalia established himself as a firm opponent of abortion, gay rights and racial preferences. He was the lone dissenter when the court opened the Virginia Military Institute to women and consistently opposed affirmative action policies at universities and workplaces. When the court struck down the key section of the federal Defense of Marriage Act in 2013, he angrily predicted that it would lead to same-sex marriage — and in 2015, he was proved right.
On the winning side of the ledger, Scalia was best known for authoring the court’s 2008 ruling in District of Columbia v. Heller upholding the right of citizens to keep guns at home for self-defense. The 5-4 decision, he said, was “the most complete originalist opinion that I’ve ever written.”
But Scalia’s sharp-elbows brand of conservatism more often showed up in testily worded dissents and even what The New York Times labeled “furious concurrences,” in which he agreed with the end result but ranted about the reasoning.
“Dissents are where you can really say what you believe and say it with the force you think it deserves,” he said. And if they prove correct years later, he went on, it “makes you feel good.”
That was the case in Morrison v. Olson, in which the court upheld Congress’ establishment of an independent counsel within the executive branch but beyond the president’s control. Scalia, as the lone dissenter in just his second term, said it infringed on presidential power.
“Frequently an issue of this sort will come before the court clad, so to speak, in sheep’s clothing,” he wrote of the balance-of-powers issue. “But this wolf comes as a wolf.”
In time, many conservatives and liberals came to distrust the power given to independent counsels, including Kenneth Starr, whose four-year investigation of President Clinton culminated in his impeachment. Congress let the law expire in 1999.
“It turns out that everything that Justice Scalia says in that opinion … is true,” his liberal colleague, Justice Elena Kagan, said recently.
Scalia also dissented vehemently from a 2012 ruling in an Arizona case that restricted the rights of states to regulate immigration. “You’re not a sovereign state if you can’t control your borders,” he groused.
NO RETREAT, NO SURRENDER
He opposed the president and favored Congress in the more recent test of President Obama’s recess appointments power. While agreeing with the court’s majority that Obama exceeded his authority by going around the Senate to name members to the National Labor Relations Board, Scalia argued that such power should be limited far more than the court allowed.
“The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he wrote. “That is unfortunate, because the recess appointment power is an anachronism.”
Never one to compromise his principles, Scalia spent most of his career on the court watching helplessly as its moderate members — Justices Sandra Day O’Connor and, later, Anthony Kennedy — cut the deals that led to majority opinions on issues such as abortion and gay rights.
His objections, he said recently, were not based on policy views but on “who decides” — and his answer almost invariably was the Constitution, the Congress or the president, not unelected judges with lifetime appointments like himself.
“Don’t paint me as anti-gay or anti-abortion or anything else,” he said. “We are a democracy. Majority rules.”
Despite his sometimes petulant personality, which he used on occasion to berate unprepared litigators standing alone at the lectern, Scalia was popular with his colleagues. He maintained close friendships with liberals such as Kagan and Justice Ruth Bader Ginsburg, with whom he bonded in the 1980s when they served together on a federal appeals court.
Ginsburg recently recalled listening to Scalia deliver a speech to the American Bar Association. She disagreed with the thesis, she said, but “thought he said it in an absolutely captivating way.”
Kagan, whom Scalia taught to hunt for ducks, deer and other game, called him “funny and charming and super-intelligent and witty.”
“If you can’t disagree on the law without taking it personally,” Scalia was fond of saying, “find another day job.”