Supreme Court associate justice and giant of US politics and constutional law, Antonin Scalia, 79, has died of apparent natural causes in Texas.
According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.
Widely considered to be an “originalist”, Scalia actually used a “textual” interpretation of the Constitution, relying on the plain reading of the text as written to rule on cases. This interpretation placed him as one of the most conservative justices on the Court, and his intellect and integrity will make him impossible to replace.
It is no exaggeration to say that Justice Scalia was the most consequential jurist of the past 35 years. A persistent, pugnacious and persuasive advocate for textualist statutory interpretation and originalist constitutional interpretation, he had an outsize effect on his colleagues, the court and the course of the law. More than anyone else, Justice Scalia is responsible for the renaissance of these interpretive methodologies and the displacement of “living constitutionalism” and reliance upon legislative history.
He certainly won’t be replaced by President Obama.
Scalia was only the third oldest member of the Court before his death. Ruth Bader Ginsberg and Anthony Kennedy, 83 and 80 respectively, have been on the watchlist for retirement in the last few years. Obama might have had a chance to replace a liberal or swing vote with his third appointment, if that had happened. But not Scalia.
Controlling a 54-seat majority in the Senate, Republicans will not and should not allow one of the most conservative justices to be replaced by a liberal, tipping the balance on the court for a generation. Senate Majority Leader Mitch McConnell has already said as much.
The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.
A Supreme Court vacancy in an election year provides exactly that opportunity. Replacing someone of Scalia’s caliber and gravity should not happen while voters are in the process of deciding the direction the country will go in the next four years. Part of that process is considering how the next president will nominate members to the Court, so this is a direct reinforcement of the power of that choice. Voters should get to decide who will replace Justice Scalia.
The loss of Scalia will likely clarify the primary election for many people. There are few presidential responsibilities more significant and lasting than nominating a Supreme Court Justice.
Do voters really want to grant that power to Donald Trump, a literal know-nothing on constitutional law? Or will Ted Cruz suddenly become more viable, as a former clerk for Chief Justice William Rehnquist and solicitor-general for Texas, who argued many cases before the Court on behalf of that state?
Even more urgently, the Court’s current session doesn’t end until this summer. They will be hearing cases in March then issuing rulings in June. Scalia’s absence from those proceedings will be deafening and consequential. For at least the next year, there will likely be only 8 justices, and the potential for several tie votes - 4 liberals, 3 conservatives, and Kennedy.