Ask students if they have heard about the death of Supreme Court Justice Antonin Scalia on February 13, 2016. What do they know about Justice Scalia and about the controversy that has ensued since his death?
Share with students that conservatives lost an important voice in the legal establishment with the death of Supreme Court Justice Antonin Scalia. Scalia drew attention not only for his conservatism, but for his intellect and his blunt outspokenness and combativeness. Scalia’s death has touched off a firestorm of debate over how he will be replaced on a court that has often voted 5-4 on critical issues.
Read aloud this sampling of quotes from Scalia:
- "There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well." (on affirmative action)
- "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't." (on sex discrimination)
- "Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?" (on torture)
- "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?" (on homosexuality)
Ask students: What thoughts and questions do these quotes raise for you?
Ask students to read the following, or read it out loud to the class.
Impartiality and a Split Court
In theory, the Supreme Court justices decide cases entirely on their merits, not on the basis of their own political, moral and economic views. The justices are charged with guarding the constitutionality of our laws and the entire legal system. So, for example, in a case about capital punishment, a justice’s religious conviction that all killing is wrong should not influence her opinion about the case. Of course in reality, Supreme Court opinions have always been subject to not only the personal philosophies and prejudices of the justices, but to public opinion and the likely consequences of their decisions.
The Roberts Court (taking the name of the Chief Justice, John Roberts) seems to be a court that is unusually influenced by the personal politics of its members. Four of the justices have tended to take more liberal positions, four are considered conservatives, and the ninth, Anthony Kennedy, has often been the swing vote. Although only a quarter of the Supreme Court decisions are 5-4, these cases are typically the most significant, divisive and controversial cases.
Here are some examples of 5-4 decisions on the Roberts court:
2000 Election (Bush v. Gore)
The election results in the state of Florida were hotly disputed because the vote was extremely close and in many cases the ballots themselves were open to different interpretations. The Florida Supreme Court ordered a recount, but the Supreme Court overruled, allowing Florida’s electoral votes to go to George W. Bush, who was then elected president.
Campaign Finance (Citizens United v. Federal Election Commission, 2010)
In Citizens United, as the case is known, the Court ruled that the FEC could not regulate the spending of independent organizations on political campaigns. They overturned decades of precedent in which Congress and state legislatures had limited the amount of money that could be spent by outside groups in elections and how the money could be spent. The Court’s conservatives reasoned that money contributed to political organizations amounted to free speech and therefore could not be limited.
Same Sex Marriage (Obergefell v. Hodges, 2015)
In June 2015, the Supreme Court decided that same-sex couples have the right to marry guaranteed by the Constitution. The four conservatives (including Scalia) dissented from the majority opinion.
Voting Rights Act (Shelby County v Holder, 2013)
As a result of sustained pressure from the Civil Rights Movement, Congress passed the Voting Rights Act in 1965. States and localities were forbidden from erecting barriers to voting for racial minorities. In the following 50 years the provisions of the Act were extended and amended to account for changing conditions. In 2013, the Supreme Court decided that most of the provisions of the law were unconstitutional because the Voting Rights Act has been successful in reducing discrimination. The four liberal justices argued that Congress has the power to make the decision.
The votes in the 5-4 decisions are almost always predictable according to the politics of the individual judges. With the sharply divided court, the conservatives have had several advantages:
- Chief Justice Roberts, a conservative, sets the court’s agenda and calendar.
- The chief justice also determines which judge will write the court opinion.
- Justice Kennedy, the swing vote, is a Reagan appointee (as was Scalia), and more likely to side with the conservatives.
Scalia’s death means that the court has lost a reliably conservative vote. If the justice who replaces Scalia is on the liberal side of the scale, it will likely result in many more liberal decisions by the court.
A number of major cases are up for consideration by the court this year — including cases involving immigration, abortion rights, unions, and redistricting. Scalia’s death means that the court may be split 4-4 in many of these decisions, unless a new Supreme Court justice is speedily nominated by the President and approved by the Senate.
What happens next?
A hot political debate has erupted over filling Scalia’s seat on the Supreme Court.
According to the Constitution, the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court." However, some Republicans argued that President Obama should not nominate a candidate, and instead allow the nomination to be made by the winner of the 2016 presidential election, who will take office on January 20, 2017.
President Obama firmly rejected this call in a statement following Scalia’s death:
"I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy."
With the sharply divided country, Congress, and Supreme Court, we can assume a contentious fight over the President’s nominee. Since his term ends in less a year, and the Republicans control the Senate, there is a good chance that his nominee will not be approved. The next president may very well get to make the big decision on who will replace Antonin Scalia.
1. Justice Scalia is associated with a judicial philosophy which holds that the Constitution should be interpreted today as its meaning was understood when the document was written (a view sometimes called "fundamentalist" or "originalist"). An opposing philosophy, which he loathed, advocates for a "living, breathing constitution" which adapts to a changing world. How might these philosophies influence a decision on gun control, abortion, privacy/surveillance, or campaign finance?
2. Various reforms have been discussed to make the Supreme Court more accountable. What effect do you think the following changes might have?
- Term limits. Justices now serve for life.
- Allow live video and audio broadcast of the Court proceedings.
- Subject the Supreme Court justices to the same ethical code that all other judges must follow. The nine justices are currently exempt from the code of conduct all other U.S. judges follow, which aims to ensure their neutrality and transparency.
3. Some Republicans have argued that the "American people should decide" who will fill the vacancy on the court by leaving the nomination up to the President who is elected in November. Republican presidential candidate Donald Trump argued that the Senate should "delay, delay, delay" if Obama’s nominee comes before them for approval. Do these approaches have any merit? Why or why not?