Why you should care
Should one man’s death throw democracy for a loop?
The death of Antonin Scalia, the longest-serving justice on the Supreme Court, adds a dollop of surprise to an already unpredictable election season. Court-junkies and ordinary citizens alike are trying to parse the implications for both the Court and the country. How will the passing of the Court’s most stridently conservative justice — one known for his archness and strict interpretation of the Constitution — affect upcoming decisions? Who will replace him? When will someone replace him?
To help figure out what Scalia’s death portends, we reached out to constitutional law expert and former Stanford Law School Dean Larry Kramer. Now head of the The William and Flora Hewlett Foundation, Kramer knew Scalia for many years. In 1986, he was just finishing up his own clerkship, for Justice William J. Brennan, when Scalia was appointed to the Court. The pair kept up a correspondence for many years, even though Kramer became a Court critic. In this edited version of our interview, Kramer discusses Scalia’s intellectual legacy and prospects for the next appointment, and raises a big question: Why should the death of one person throw a democracy into a tailspin?
OZY: What was Scalia’s impact, and why was he important?
Larry Kramer: First off, Scalia was a fifth, solid conservative vote in pretty much all the important cases on a court that tended to divide 5 to 4. Second, as an intellectual matter, he had a very clear, very firm jurisprudence — originalism in constitutional interpretation, textualism in statutory interpretation — that he pushed forcefully. Even Justices who didn’t agree with him had to incorporate his arguments and ideas into their analysis, and it definitely reshaped how everyone argued and thought about the cases. Third, he was on the court for a really long time: Given the Court’s role, virtually anyone who sticks around long enough has significance for that fact alone.
OZY: When history looks back, what will Scalia’s most important opinions be, and why?
L.K.: I don’t think his legacy will rest in any particular opinion or opinions. His legacy will be in his broader intellectual influence — making originalism a dominant form of constitutional interpretation, de-legitimating the use of legislative history, things like that. To the extent he is remembered for opinions, it will be for his biting pen and the angry, vindictive dissents he wrote in big cases he lost, like same-sex marriage, the Affordable Care Act, and so on. They’re fun to read, but I think they mostly will be remembered as examples of how not to write.
OZY: For the upcoming term, which cases will be most impacted by his absence?
L.K.: All of them. Every single important case will be affected by his absence. The Texas redistricting case, the Texas abortion case, the challenge to the president’s immigration order, etc., were all likely to be 5 to 4 decisions. In some of those, Scalia might have been among the dissenting 4, but in others, he would be the fifth vote in the conservative bloc. Now, the best they can do will be 4 to 4 and an affirmance of whatever happened below. Take the EPA’s Clean Power Plan. We learned just this past week that the five conservatives thought it likely the states should prevail in overturning the plan. And then there were four.
OZY: Who might replace Scalia?
L.K.: I suspect the answer is no one while Obama is still in office. Even apart from their general reluctance to give the president anything, replacing Scalia with a liberal will reverse the Court’s ideological majority. So there is no way the Republican-controlled Senate will approve anyone Obama nominates with the election only 7 months away. I’m sure he’ll nominate someone, of course. I have no idea who that would be, but I doubt even a resurrected John Marshall would be approved by this Senate if nominated by Obama.
OZY: What else should we be thinking about?
L.K.: The pundits will now have a field day, noting how profoundly important Scalia’s replacement will be—how many hugely important issues could change or be affected. I’d like to think that should give everyone pause. Should the death of a single judge have that kind of importance in a democracy? Have we gone a little overboard in letting the Court assume power to dictate the course of our politics? The Republicans and Democrats will fight so hard over his replacement because each side knows, if it gets the chance, it can pick someone who will dependably support its views. Surely there’s something wrong with this picture.