Home Op-Ed SCOTUS without Scalia: the Jury is Out
SCOTUS without Scalia:  the Jury is Out

SCOTUS without Scalia: the Jury is Out


Every lawyer has had an opinion about the late Justice Antonin Scalia. The opinions ranged from the fill in the blank unprintable to rock star. No one has been indifferent.

The only child of Italian immigrants, born in New Jersey and raised in Queens, he graduated from Georgetown University and then Harvard Law. He was a devout Catholic, who would drive his family, which would eventually include nine children, great distances to worship at churches that celebrated mass in Latin, not the new-fangled way.

A colorful, stylish passionate writer, he was not at all hesitant to mix it up, in oral argument, in his opinions, in his speeches and public appearances and with his colleagues on the bench. Everyone reading his opinions knew exactly where he stood. He was a judicial activist for conservative views.

For those of you too young to remember, President Ronald Reagan won the White House in 1980 with an agenda to return to conservative values, believing that the country had grown too liberal under President Jimmy Carter. It was the time of the Reagan Revolution.

One of the ways any president is able to steer the course of the country, and President Reagan was no exception, is by nominations to the United States Supreme Court, a life tenure appointment that usually far outlasts the two term presidential limits. President Reagan put his imprimatur on the Court for generations by nominating Associate Justice William Rehnquist to Chief Justice, nominating Judge of the D.C. Circuit Antonin Scalia as an Associate Justice, both in 1986, and lastly, 9th Circuit Judge Anthony Kennedy in 1988, the last year of President Reagan’s two terms in office. Those nominations pretty much sailed through Senate confirmation before the process became so contentious and treacherous for nominees.

Justice Scalia was, at the time of his appointment, a reliably conservative justice, and became even more so in his thirty years on the bench. He believed in interpreting the Constitution as it was written two hundred years ago, not as a living, breathing, going with the times document that characterized the philosophies of some other justices. He was an “originalist,” who interpreted the Constitution literally, who hewed to a strict construction of that document. He believed that an “evolving Constitution” politicized the Court because opinions would change with the societal mores of the times. Justice Scalia thought that the other two branches of government should solve society’s ills; it was not, he believed, the job of the judiciary. He disdained using legislative history for interpretative purposes. He thought that the pure text of the statute sufficed.

He was all for overturning Roe v. Wade and other opinions that he thought had been a court way too liberal for way too long. He was unafraid to be the great dissenter in forceful language. He took no prisoners, even if his dissent stood alone.

Justice Scalia’s originalist view did not always parallel conservative views in certain cases. He joined with Justice Brennan in a 1989 opinion that upheld the right of a protester to burn an American flag on First Amendment grounds in Texas v. Johnson. He interpreted the 6th Amendment, the right to a jury trial, meant exactly that, and so he opined that any sentencing enhancements to a criminal conviction had to be decided by a jury, not the sentencing judge, joining in a 5-4 majority opinion written by Associate Justice John Paul Stevens in Apprendi v. New Jersey. He also extended a defendant’s Sixth Amendment right of confrontation in several cases.

For years after the Bush v. Gore case, which ended the Florida ballot recount in 2000 and thus made George W. Bush President, he was frequently asked about it. His tart reply was always “Get over it.”

Justice Scalia wrote the 5-4 majority opinion in District of Columbia v. Heller, the 2008 opinion that held that the Second Amendment gives citizens the right to possess guns in their homes for self-defense purposes. However, Justice Scalia did not opine that the Second Amendment right was absolute.

Many of the opinions when Justice Scalia was on the court were 5-4; he was sometimes in the majority, sometimes not. His death leaves the Court in a 4-4 deadlock. There are four liberal justices: Ruth Bader Ginsburg, who was a BFF of Justice Scalia, especially in their joint love of opera, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Conservatives justices are the Chief Justice John Roberts, Samuel Alito and Clarence Thomas.

Associate Justice Anthony Kennedy tends to the conservative side on some issues, but has written majority opinions in a number of social issue cases, the most recent in the landmark case of Obergefell v. Hodges. That opinion held that same sex couples have the fundamental right to marry under both the Due Process and Equal Protection clauses. Justice Scalia dissented in no uncertain terms, writing that the majority had dispossessed the public of the right to decide that issue on a state by state basis.

Due to his death, what will happen in a number of significant cases presently pending before the Court? They include the following:

Friedrichs v. California Teachers Association asks whether public employee unions can charge fees to nonmembers. The Ninth Circuit said yes. At oral argument, the sense seemed to be that there were five justices (including Justice Scalia) who thought that those fees violated the free-speech rights of nonmembers. With his seat now vacant, it’s anyone’s guess as to the decision.

Zubik v. Burwell pits the Religious Freedom Restoration Act against the contraceptive mandate under the Affordable Care Act. Must a nonprofit organization affiliated with a religious institution comply with that mandate when to do so would violate that organization’s sincerely held religious beliefs? Federal appellate circuits took different positions.

Whole Women’s Health v. Hellerstedt is an abortion case from Texas where the issue is whether states can legislate strict medical regulations that have the effect of shutting down abortion clinics.  One issue is how to apply the “undue burden” standard set forth in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, in which Justice Scalia vociferously dissented. While the district court stayed enforcement of the regulations as undue burdens on reproductive rights, the Fifth Circuit reversed.

Evenwel v. Abbott, argued in December and another case out of Texas, asks the Court to define what does “population” mean in the context of the “one-person, one vote” principle under the Equal Protection Clause. Is it “total population” or “eligible voter population?” A Texas district court held it was the former.

Fisher v. University of Texas II is still another Texas case; it is on its second visit to the Supreme Court. The Court previously remanded it back to the Fifth Circuit to determine whether the University’s use of racial preferences in undergraduate admissions could be upheld under the Equal Protection Clause of the Fourteenth Amendment. Upon remand, the Fifth Circuit said yes, and so the case is back before the Court to review the Fifth Circuit’s second opinion on this issue. In Fisher v. University of Texas I, Justice Scalia had joined in the majority remand opinion. Justice Kagan had previously recused herself in Fisher I, so only seven justices will decide this case.

United States v. Texas challenges President Obama’s executive orders on deportation, in particular, the expanded Deferred Action for Childhood Arrivals (DACA) and the Deferred Action for Parents of American and Lawful Permanent Residents (DAPA).   Texas obtained a preliminary injunction from the district court to stay implementation of those executive orders, asserting that it had standing to challenge them. The divided Fifth Circuit affirmed the granting of the preliminary injunction and the Justice Department appealed. Oral argument is scheduled for the end of April.

Trinity Lutheran Church of Columbia v. Pauley asks of whether Missouri can deny a church playground from a state program that provides safer play surfaces. The Eighth Circuit split on this issue. Briefing is underway.

Justice Scalia’s death will have an effect on American jurisprudence just as his life did. If the Court splits 4-4 on any or all of these rulings, then the lower court ruling, whatever it is, is affirmed, but the precedential value of these opinions is limited to the particular circuit and is not binding on all circuits nationwide. Alternatively, the Court could hold the case over for re-argument until it is at full strength again. The vacancy created by Justice Scalia’s death is pivotal; the full measure of his legacy remains to be seen.

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Jill Switzer
Jill Switzer
Jill Switzer has more than 40 years as an active member of the State Bar of California. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time as a panelist with ARC, Alternative Resolution Centers in Los Angeles, and she loves comic books and graphic novels. In addition to her full-time mediation practice, Jill speaks on a variety of topics to state and local bar associations and writes a weeklyr column at www.abovethelaw.com. She is also a certified volunteer long-term care ombudsman in Los Angeles County.


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