The Lowdown: Why is Antonin Scalia’s death a big deal?

Jordan Schulte

JS: Hello, I’m Jordan Schulte and you’re listening to the Lowdown. The political world has seen yet another shakeup as Supreme Court Justice Antonin Scalia was found dead in a West Texas Ranch on February 13th. The constitution says the president is supposed to nominate a new justice, but many senate republicans have already sworn to prevent him from doing so. I sat down with Dr. Mark Richards, dean of the political science department, to learn more about Scalia and the consequences of his death.

JS: So can you tell me a little about Justice Scalia and some of his views?

MR: Justice Scalia purported to be an adherent of originalism. That was his theory of constitutional interpretation that we should defer to the writings of the framers of the constitution. SO his critics noted that the values of the framers of the constitution sort of conveniently aligned with what they saw as Scalia’s own conservative views, although Scalia claimed he was politically neutral and was trying to take politics out of it by just deferring to the framers.

JS: Are there any particular cases you can point to that illustrate his views? 

MR: One of the judicial opinions he was very famous for was his ruling in DC vs. Heller, which struck down DC’s very, very strict gun control regulations. That was an opportunity for scalia to really delve into his originalist philosophy, so he went back and looked into history and looked at what did the founding fathers think, what were some of the laws passed in some of the different states around the time of the founding, what was some of the pre-Civil War legislation, what was post-Civil War legislation, what did legal commentators say before the Civil War, after the Civil War. And so he really was able to get, you know, a lot of mileage out of his theory of originalism there to justify that an individual does have a right to possess and use a gun for self-defense in terms of the home. However, his critics still pointed out that although he engaged in this very elaborate historical analysis, it really didn’t tell us much in terms of what guidance we have as to what types of regulations are permissible today. So for example, the framers didn’t really have much to say about whether we could ban fully automatic weapons, for example, or extended magazines or things like that, because they simply didn’t anticipate those types of particular weapons. 

JS: And he also voted against legalizing gay marriage, didn’t he?

MR: Right, yeah, so this is a pretty interesting area. This is definitely where you can see that his theory of originalism and sticking closely to the text of the constitution fit his approach in these areas pretty well. So yeah, he opposed gay marriage, and also in an earlier case, Lawrence vs. Texas, he thought it was OK for states to criminalize adults choice of sexual activity in their own bedrooms in their own homes. So even though that seems to kind of go against a conservative understanding of privacy, you can also see it sort of fits with his conservative catholic morals and he was OK with the government criminalizing that. So it’s interesting that in a lot of areas, even though Scalia was known for being very strong in terms of this originalist interpretive philosophy, he ended up being on the losing side a lot of times because he wasn’t able to persuade enough of his colleagues to join his particular point of view. 

JS: One of the things that I thought was really crazy was that, in basically no time after he died, people immediately turned this into a very political issue and kind of skipped the grieving phase altogether. Why do you think that is?

MR: Yeah, that’s a great point. I was pretty much astounded that it seemed to become politicized within about two hours of his passing. Obviously, the stakes are very high, a lot of these cases are very closely decided by a 5-4 vote, and we’ve also got the interesting dynamic of being on the cusp of a presidential election as well. So obviously, on the republican side, they see that they would rather Obama not even put a nominee forward, they’d like to just delay it until the next president is chosen. Of course on the Democratic side they’re saying the president actually has a constitutional obligation actually to nominate someone, and the senate should give that individual a fair hearing. 

JS: So what are going to be the consequences now that the Supreme Court has eight rather than nine justices?

MR: Obviously, if it’s not a tie then it’s not a problem. But the difficult cases are if it’s a 4-4 tie. In that situation what happens is the court simply indicates that the court wasn’t able to reach a majority either way, and they end up reaffirming the decision of the previous court, but it doesn’t really take on any value as precedent. 

JS: So a lot of Republicans in congress, namely Mitch McConnel, are coming out and saying that they’re not going to hear out any nominee that Obama puts forward, they’re not even going to hold a hearing. But since it does lay it out pretty clearly in the constitution that the president is supposed to nominate a new Supreme Court justice, what’s their reasoning for not wanting to do that?

MR: Well, obviously they’re trying to say that it should be up to the American people. The American people are going to choose the next president and the president should then be able to nominate the next Supreme Court justice. Obviously it’s a huge political game. Mitch McConnel understands that he’s trying to play to the Republican base and get voters excited. But it’s also interesting because there’s a risk that some voters will perceive his tactics as too extreme. Maybe it would have been a better tactic for the senate Republicans to say, “Absolutely, we’ll give a full and fair hearing to anyone,” but then, of course, raise questions about that nominee on the merits. So obviously there’s still ways for them to block it if they don’t like the person that Obama puts forward, but by saying within a few hours of Scalia’s death that we’re not even going to consider anyone just kind of makes them look very extreme. So now Obama’s got an interesting political calculus as well. Does he propose a more moderate nominee, maybe somebody who’s already recently been approved to a circuit court of appeals position, in the hopes that he gets that person through, or does he pick someone that appeals more to the Democratic base to get Democratic voters excited, and then if the Republicans react against that person that could possibly excite the Democratic base. So there’s going to be a lot of political games played in the next few months and it’ll be interesting to see how it all plays out. 

JS: Senate Minority Leader Harry Reid indicated that Republican Governor Brian Sandoval may be a potential nominee. CNN reported that he is currently being vetted by the White House. That’s all the time we have for today, make sure to check out the next episode of the Lowdown, next Friday.