With Supreme Court Justice Antonin Scalia’s unexpected death Feb. 13th, a vacant seat now lies on the bench of the nation’s most powerful court. The current status of the court presents a stalemate, with four liberal-leaning justices and four conservative-leaning justices. Some suggest President Barack Obama should make the appointment quickly so the court may conduct proper business with nine justices. Others, particularly conservatives, call upon Obama to wait until his term is over, hoping a Republican president may be in the White House to choose the replacement.
After working in an international law firm, Scalia became a law professor at the University in 1967. Afterward, he served as assistant attorney general in the Nixon administration and a U.S. D.C. Circuit Court judge before he became the first Italian-American associate Supreme Court justice. He was nominated for the Supreme Court by President Ronald Reagan in 1986 with a 98-0 confirmation vote in the Senate, going on to serve on the bench for almost three decades.
The game-changing justice
Scalia had clear principles when it came to the original meaning of text and thought judges did not have the ability to change wording to suit his or her feelings for the text, Law Prof. John F. Duffy, who clerked for Scalia in the beginning of his career, said. Many have labeled Scalia as a constitutional originalist, but there are other descriptions which encompass his conservative style of rhetoric and interpretation.
Scalia shaped the grounds of argument in terms of debate, according to Law Prof. A.E. Dick Howard, who teaches a course on the current justices.
“His most striking contribution was the argument that the Constitution should be read as what it was understood as when it was written and [this] had not been talked about much until [Scalia] was on the court,” Howard said.
Interpretation of the law was not the only thing Scalia changed during his time on the Supreme Court. To many, he brought a powerful voice to the court which exemplified how a justice should compose themselves and how decisions should be written for the general masses.
“The literal voice of Justice Scalia can be heard on the Internet in recordings of Supreme Court oral arguments,” Duffy said. “His style in oral arguments showed his experience as a professor. He asked many incisive questions, sometimes with a good measure of humor, and those questions were always directed toward identifying and illuminating the most difficult issues in the case.”
Duffy also said Scalia was a man of many different sides who hoped his legacy, in the eyes of the people, would be of a longtime civil servant who had a great respect for the Constitution and the law.
“I think that, in his public life, Scalia should be remembered for his love of the law,” Duffy said. “His passion for law drove his desire both to make sense of the law generally and also to respect the constraints that the law has traditionally imposed on judges. I think that he should be remembered as a judge who worked hard to be faithful to the law.”
The present problems
Two current problems have arisen as a result of Scalia’s untimely death. The first problem, which comes up every time a justice retires or dies while serving on the bench, concerns who will replace Scalia. While the president has the authority to nominate a justice when there is a vacancy, the Senate has the constitutional authority of advice and consent for this nomination.
If the question of who will replace Scalia is not solved in the immediate future, the second problem becomes how the court will be affected without a replacement for the next year and what will happen in the absence of Scalia’s political ideologies and overall style.
University Democrats President Sam Tobin, a third-year College student, said he believes Obama should appoint another justice while in office.
“There are 300-something days until the next election and it is his constitutional right, and it is irresponsible for him to wait that long to appoint a justice,” Tobin said. “Political motivations should not affect that process.”
College Republicans Chair Jay Boyd, a fourth-year College student, also said it is within Obama’s rights to appoint a new justice while still in office.
“I think Obama should appoint a nominee and I don’t think there is a problem. It is his right and it is the senate's right to vote on that nominee,” Boyd said.
Whether or not a nominee is selected within the next few months, the dynamics of the court will shift. Without Scalia, the court could move toward a more liberal agenda depending on who is tapped and confirmed for the post. Without a justice, the court could sway toward a tie or toward a more conservative agenda in many of the cases on the docket.
Many landmark decisions have been determined by the vote of a single justice, so a change could greatly affect some of those cases, Howard said.
“I think both parties recognize that so many issues hang in the balance with this vacancy,” Howard said. “Citizens United could be overturned, rights to bear arms cases, prayers and town meeting cases, religious exemptions for businesses, and these can be in danger if a liberal replaces the justice.”
The future of cases on the docket
With the succession of Scalia still a critical question, the Supreme Court remains in session and continues to hear cases. A quorum of six justices is necessary to stay in session, and the current tally on the bench sits at eight, which leaves room for a tie in many upcoming cases. Several cases with the potential to impact University students include Zubik v. Burwell, Fisher v. Texas and Whole Woman's Health v. Hellerstedt.
Zubik v. Burwell hopes to answer the question of whether businesses must abide by the mandate to provide contraception to all their workers under the Affordable Care Act, also known as Obamacare. Fisher v. Texas looks to answer a question about the constitutionality of affirmative action in admissions policies in a specific case involving the University of Texas. Whole Woman’s Health v. Hellerstedt could provide an answer to the rising number of closed abortion clinics in many conservative states.
“[Each decision] is something that is completely up to the courts, and whatever they decide, we will respect their decision,” Boyd said. “It’s not in our best interest to combat something that is against us, because it has already been decided upon.”
A single vote can sway many of these cases in a certain direction or ensure the decision’s validity is not questioned in the future. In Whole Woman’s Health v. Hellerstedt, without another justice, the court could tie, ruling in favor of the state and closing all but 10 abortion clinics in the state of Texas.
In Fisher v. Texas, the case will come down to seven justices, as Justice Elena Kagan has recused herself due to her prior work with the case. Lastly, Zubik v. Burwell could also go four to four, granting no further insight as to how states should conduct themselves with regard to Obamacare, which mandates all employers provide contraception.
“[Zubik v. Burwell should be] upheld,” Tobin said. “I believe it is the duty of an employer to provide health services for its employees and contraception should be a part of that.”
While Scalia’s death has sparked current debate about a court replacement and questions regarding the outcome of important cases, his role as a University professor was instrumental in shaping the rest of his legal career, Duffy said.
“I am fairly certain that he had really enjoyed teaching here at the University of Virginia,” Duffy said. “When I told him I was coming to the [Law School], he told me that he was very happy during his years in Charlottesville and that the University would be a great place for me to teach.”
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