Wednesday, February 17, 2016

On Justice Scalia's Death: Why you Can't Divorce Law from Politics

Nothing exemplifies the inexorable connection between law and politics more clearly than the death of a Supreme Court Justice in the midst of an already chaotic presidential selection process.   Immediate reactions to the announcement of Antonin Scalia’s passing are fraught with the anticipated ferocity of the impending confirmation battle and the possible implications for not just the election itself, but for ideological future of the Court. Supreme Court nominations are, and always have been, inherently political, but to understand why the fight to replace Scalia is being characterized as  epic, it is necessary to have a strong understanding of history and politics.

Associate Justice Antonin Scalia (1936-2016).
The announcement of Scalia's death has sparked a political maelstrom that
will reverberate well beyond the 2016 elections. Official Court Photo.
First, not all vacancies are created equal.  Context is everything.  In immediate terms, we have a Democratic president in his last year of office and a Republican controlled Senate (54-46) in the middle of what is shaping up to be a long and divisive primary contest (for both parties), and against the backdrop of polarized politics and volatile electorate. If President Obama moves forward to place a name into nomination, he can expect a monumental battle with Senate Republicans – even if he opts for a consensus or moderate nominee (or perhaps even a sitting or former Senator).  Many Republican presidential candidates and some party leaders are vowing to not act on any nomination forwarded – a stand that is without precedent, constitutionally and politically speaking. There are multiple examples of Supreme Court nominations in presidential election years. Obama might consider a constitutionally permissible recess appointment, but that would still require a confirmation vote once the Senate reconvenes. If the confirmation of a new justice is denied or delayed until after the elections, the vacancy becomes the central issue for the candidates and voters alike - not just in the presidential election, but in the fight for Senate.  We are also halfway through a blockbuster 2015 Term of the Supreme Court which will not wrap up its business until late-June.  Any decision in which Scalia participated but has not been announced will be decided by an 8 person Court, making 4-4 outcomes a distinct possibility.  The Court has several big issues, including abortion, affirmative action, and voting rights, on its docket. Even if the most controversial of these issues are held over for reargument next term, threatened delays in the confirmation process may mean the Court is still a justice short of a full bench when it begins the 2016 term in October.
FILE � President Ronald Reagan introduces Antonin Scalia, his appointment to the Supreme Court, alongside Chief Justice William Rehnquist, right, in 1986. Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, died on Feb. 13, 2016. He was 79.
Antonin Scalia, Ronald Reagan, and William H. Rehnquist in 1986.  Scalia was one of four of Republican President Ronald Reagan's successful appointments to the Supreme Court. Renowned as a brilliant conservative jurist, Scalia was confirmed by a vote of 98-0. Most of the attention was on Reagan's simultaneous elevation of Rehnquist from Associate to Chief Justice (which was more narrowly approved by a vote of 65-33). Photo credit: Paul Hosefros 
A broader, historical view also provides critical context for understanding the impending debate. The balance (or tipping point) between the Court’s liberal and conservative blocs makes some vacancies more critical, and therefore much more political, than others.  Scalia’s appointment in 1986 was part of what judicial scholars have termed a conservative judicial counter-revolution – a backlash to the liberal rulings of the Warren Court (1954-1969) and the effort of Republican Presidents (primarily Nixon, Reagan and George W. Bush) to remake the Court in a conservative direction.  Scalia was not just a reliable member of the conservative majority; in many ways, he was its most iconic figure. It is not then just that a vacancy has opened up unexpectedly, it is that Scalia’s loss in particular marks a potential moment in which the ideological momentum of the Court in a rightward direction, which can be traced all the way back to Nixon’s victory in the tumultuous 1968 presidential election, is arrested or perhaps even redirected the opposite way.

Purely legal theories of judicial decision making emphasize analogous reasoning and the neutral application of legal principles and precedent. Political scientists, on the other hand, tend to view decision making in attitudinal and strategic terms – that is, they maintain that judicial outcomes are shaped by the underlying attitudes or ideology of the justices and their strategic interaction as a group.  Doctrinally, Scalia was extremely influential; he was a prolific writer guided by a clear jurisprudential vision and consistent interpretive methodology. His fidelity to a clear judicial philosophy, acerbic style and intellectual egoism did not, however, always lend itself to consensus building. Scalia’s absence thus creates a potential reconfiguration of relative influence within the Court’s conservative bloc, as well as within the Court as a whole. The lens of judicial behavior and politics thus offers insight as to the profound impact which Scalia’s passing may have on future decisions of the Court, both immediately and in the long run.

 Judicial vacancies offer the opportunity for presidents to reshape the Court and leave a lasting political legacy.  Scalia was one of 5 justices appointed by Republican Presidents; his replacement by a Democrat shifts the ideological balance. Judicial retirements can be politically timed; vacancies created by an unexpected death cannot. The Roberts Court: Front Row, left to right: Associate Justices Clarence Thomas (G.H.W. Bush, 1991), Antonin Scalia (Reagan, 1986), Chief Justice John Roberts (W. Bush, 2005), Associate Justices Anthony Kennedy (Reagan, 1987); Ruth Bader Ginsberg (Clinton, 1993); Back Row, left to Right: Associate Justices Sonia Sotomayor (Obama, 2009), Stephen Breyer (Clinton, 1994), Samuel Alito (W. Bush, 2006), and Elena Kagan (Obama, 2010). 
Whether viewed in terms of external or internal politics, law and the study of history and politics are intimately and inextricably intertwined. Our independent judiciary does not operate independently of the larger political system. As Justice Holmes famously remarked, in institutional terms, the Supreme Court appears sedate, but it is the kind of quiet that exists in the eye of the storm.

The History and Political Science Department offers numerous courses which help to place the law and presidential legacies through Supreme Court appointments within full historical and political context.  If you are interested in learning more about the importance of the Scalia vacancy -- or other current events as they unfold – please feel free to stop by the History & Political Science Department and be sure to check out the History & Government Club and the Pre Law Student Association.


Andrew Wise said...

Dr. Parshall,

Thanks for sharing your expert analysis on this important issue. Your comments are timely, and your insights help me place this development within the appropriate historical, political, and legal contexts. I hope to see more blogs on the appointment issue in the future.

Dr. Wise

Shirley Peterson said...

Dr. Parshall,
This is a very clear and balanced explanation for the current SCOTUS situation. I'm sure the history and context of the situation are of great interest to our students. Thanks for your insightful commentary.

I'd like to know more about the possibilities of a recess appointment. Would that be an alternative for President Obama that would delay a nomination until the election, or would he simultaneously move forward with a permanent nomination?

Dean Peterson

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