- Ian Millhiser
senior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress Justice. His latest piece is headlined “The Simply Breathtaking Consequences of Justice Scalia’s Death.” He is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.
- Scott Horton
human rights attorney and contributing editor at Harper’s Magazine. He is also a lecturer at Columbia Law School.
- Linda Hirshman
lawyer and historian. She’s the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.
With Saturday’s death of Justice Antonin Scalia, the most important conservative voice on the Supreme Court in decades, the nation may be heading into a constitutional crisis. Senate Republicans are vowing to block President Obama from filling Scalia’s seat. His death will also have an immediate impact on how the now eight-person court will rule in several key cases on the docket this term, including abortion, contraception, unions, voting rights, affirmative action, immigration and the status of Puerto Rico.
JUAN GONZÁLEZ: With Saturday’s death of Justice Antonin Scalia, the most important conservative voice on the court in decades, the nation may be heading into a constitutional crisis. Senate Republicans are vowing to block President Obama from filling the Supreme Court seat left by Justice Scalia, who died on Saturday at the age of 79. The next justice could tilt the balance of the Supreme Court, which has been left with four conservative and four liberal justices. Obama, who has 11 months remaining in his term, said he will nominate someone to fill the empty seat after the Senate returns to session on February 22nd. But Republicans are claiming that since this is an election year, the next president should be the one to fill Scalia’s seat. According to a count by ThinkProgress, the Senate has confirmed 17 Supreme Court justices during an election year, most recently in 1988 when the Senate confirmed Anthony Kennedy.
For nearly 30 years, Scalia was the leading conservative voice on the bench. He was appointed by President Reagan and approved by a unanimous vote in the Senate. Joe Biden, who was chair of the Senate Judiciary Committee at the time, said later, quote “the vote that I most regret of all 15,000 votes I have cast as a senator” was “to confirm Judge Scalia”—”because he was so effective.”
AMY GOODMAN: Antonin Scalia promoted the idea of “originalism,” claiming the U.S. Constitution should be understood in the context of the 18th century era when it was written.
In 2003, he wrote the dissenting opinion in the case Lawrence v. Texas that struck down a Texas law that made gay sex a crime. Scalia wrote, quote, “Today’s opinion is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda,” unquote.
In 2000, he voted with the majority in Bush v. Gore case to stop the recounting of ballots in Florida, securing the presidency for George W. Bush.
In 2010, he voted with the majority in the Citizens United case, opening the floodgates for unlimited corporate spending on election campaigns.
Three years later, in 2013, he joined the majority striking down parts of the Voting Rights Act of 1965 in the Shelby County v. Holder case.
And in the 2014 Hobby Lobby case, Scalia and the majority ruled, in a blow to women’s access to contraception, that private businesses can be exempted from certain laws on religious grounds.
JUAN GONZÁLEZ: The death of Antonin Scalia could also have an immediate impact on how the now eight-person court will rule in several key cases on the docket this term, including abortion, contraception, unions, voting rights, affirmative action, immigration and status issues relating to Puerto Rico.
To talk more about the death of Antonin Scalia, we’re joined by three guests.
Ian Millhiser is a senior fellow at the Center for American Progress Action Fund and the editor of ThinkProgress. He is the author of the book Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. His latest piece is headlined “The Simply Breathtaking Consequences of Justice Scalia’s Death.”
Linda Hirshman is a lawyer and historian. She’s the author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.
And Scott Horton is a human rights attorney and contributing editor at Harper’s Magazine. He’s also a lecturer at Columbia Law School.
And, Scott, we’ll begin with you. Your reaction to the death of Scalia and what it means now in terms of what will happen at the Supreme Court?
SCOTT HORTON: Well, we could talk about the Roberts court, for instance, or the Rehnquist court before that, but to a certain extent, of course, this has been, for the last generation, the Scalia court. Scalia has been the brains behind movement conservatism within the judiciary. He chides his opponents for having a liberal political agenda, but it’s plain enough that he’s had a conservative political agenda, one which focuses on halting the wheels of time, essentially, standing athwart history and saying “stop.” And he really is the first figure who’s developed a consistent jurisprudential philosophy to support that. So his role is extremely important, and his departure from the court immediately shifts the nature of the court.
AMY GOODMAN: Ian Millhiser, this piece you wrote, “The [Simply] Breathtaking Consequences of Justice Scalia’s Death.” Justice Scalia died on a hunting trip in Marfa, Texas, on Saturday. Talk about the cases that he was most involved with, defined the court with, and what his absence will mean, beginning with now a four-to-four court and then what’s going to happen with the Senate, the Republicans threatening not to hold a hearing for a new Supreme Court justice.
IAN MILLHISER: Sure. I mean, I’ll offer some mild disagreement with what Scott just said, because Scalia hasn’t just spent his career halting the wheels of time, he’s in many cases tried to make them go in reverse. And this term was a term where there was a potential for a lot of regression to happen. There is a direct assault on public sector unions. There now won’t be five votes to let that case go forward, or in a way that will be harmful to those unions. There’s a big redistricting case that could have shifted power away from Latino communities and towards white communities. That case now won’t have five votes to get the result that the plaintiffs wanted. And then there’s two huge reproductive rights cases, where, at the very least, there won’t be five votes in order to shrink women’s rights in that respect.
The problem, though, is that when you have a four-to-four court, what happens in the lower courts winds up mattering a great deal, because the ordinary rule is that when the court evenly divides, the lower court’s order stands. There’s some chance that there will be some re-arguments in cases where they split, but even then, the lower court’s order is going to stand in the interim in most cases. And so you can wind up in this weird situation, and you probably are going to wind up in this situation with some of these cases, where the law in, say, Arkansas, where the court of appeals there shrunk women’s rights to access birth control, is going to be different in Pennsylvania, where those rights remain more robust.
JUAN GONZÁLEZ: Well, Ian Millhiser, specifically on that, just on the issue, for instance, of immigration, that could have a negative effect, because the lower courts basically have struck down—
IAN MILLHISER: Right.
JUAN GONZÁLEZ: —President Obama’s executive order granting temporary status to 5 million undocumented immigrants. So if the court was not able to rule on that, then those lower court decisions would stay in effect, right?
IAN MILLHISER: Yeah. I mean, there’s actually potential for some pretty unprecedented chaos there, because what happened in immigration case—you’re right—the lower court there was the very conservative Fifth Circuit, said that the program is illegal. But there’s really nothing preventing some other litigant, maybe even the government itself, from going to a more liberal circuit and getting an order saying that the program is legal. Normally when you have conflicting orders like that, what would happen is the Supreme Court would resolve it. But if the Supreme Court couldn’t resolve it, I do not know of a precedent for what happens when you have one circuit saying there’s a nationwide injunction blocking this program, another equal circuit says that the program is legal, and the Supreme Court can’t review it. It’s a recipe for chaos.
AMY GOODMAN: Linda Hirshman, you’ve written an interesting Washington Post piece, and you talk about the lower courts and what exactly they mean when cases are turned back in a four-to-four decision.
LINDA HIRSHMAN: Right. Just to pick up on what Ian was saying, if the court splits four to four, then the decision of the lower court stands. So, for example, in the question of whether religious institutions have to do the paperwork to let their female employees get access to contraception, the circuits are split, so that female employees of religious institutions in the circuit—the one circuit which said it was illegal to force the churches to do the paperwork, will not be able to get their contraception paid for, and the women living in all the other circuits will be able to get their contraception paid for.
So, what you have on the ground is—for example, the death penalty. I’m very interested in the death penalty matter, because Florida, which has a tremendous amount of executions, is in the liberal—is in the blue-dominated 11th Circuit, whereas Texas is in the red-dominated Fifth Circuit. So you could have people being killed by the state—otherwise known as the death penalty—in Florida, and, you know, just a few hundred miles away in Texas, have them being—I’m sorry, have them not being killed in Florida and have them being killed in Texas. This is truly a recipe for chaos.
As it happens, the states covered—most of the circuits are dominated by Democratic appointees. So most of the circuits are what I call blue. Of the 13 United States courts of appeals, nine are dominated by the Democrats and only four by the Republicans. So, two-thirds of Americans will be living in blue circuit America, while only one-third of Americans will be living in red circuit America. And their lives will be very different.
JUAN GONZÁLEZ: And, Linda Hirshman, what is the possibility of the court just deciding not to—to postpone decisions on several of these key cases that we’ve mentioned that are supposedly coming up for a decision in this term?
LINDA HIRSHMAN: So, this is something that the court has done. For example, when I was doing the research for my book on O’Connor and Ginsburg, I looked hard at Justice Powell, who sat with O’Connor for so long. And Powell was sick and was away for several weeks. And what the court did, without, of course, saying a word about what they were actually up to—what the court did was they took the cases where they knew or suspected that Powell would be the deciding fifth vote, and they put those off, waiting for him to come back. The difference is, now, that they have—the justices have no idea when there might ever be a ninth justice. So, if Mitch McConnell is true to his word, then it will be January of 2017 before there’s any possibility of a ninth justice. That’s 11 months away. So it’s hard for me to imagine that they would be putting cases off for 11 months.
AMY GOODMAN: Now, this is key, Ian Millhiser, this issue of putting this off. You have Justice Scalia, who was an originalist, a strict constitutionalist. I mean, it is very clear that the president chooses the next—
IAN MILLHISER: Right.
AMY GOODMAN: —Supreme Court justice—and, of course, has to be approved by the Senate. Wouldn’t it be a dereliction of duty—I mean, President Obama is in for almost another year—for him just not to name someone?
IAN MILLHISER: Well, it would certainly be a dereliction of duty for the president not to nominate someone. But what it—
AMY GOODMAN: Right, nominate and send into the Senate.
IAN MILLHISER: Right.
AMY GOODMAN: Or her.
IAN MILLHISER: What this really—this potential crisis highlights is just how political the court has become. I mean, you’re going to have this spectacle of potentially having a seat open for at least a year, and probably for more than a year, possibly for more than a year, because if a year from now we have President Clinton or President Sanders but we still have a Republican Senate, there’s no reason to think that Republican Senate is going to want Clinton or Sanders to fill that seat. We have a case where the Republican Party has decided to play constitutional hardball and fight as hard as they can to keep that seat open.
And there’s one other thing to bear in mind: There are three other justices on the court right now who are very elderly. So, in a few years, we could have four open seats. You could potentially still have a Democratic president and Republican Senate, and no possibility of filling those four seats. And when you go to the Supreme Court, it’s not even clear as a matter of law that they’re allowed to hold hearings if they only have five justices. But even assuming they are, you’re going to go there, and there’s going to be four vacant seats.