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Justice Antonin Scalia dies at 79

Posted by on February 14, 2016 in In The News - 1 Comment
Associate Justice Antonin Scalia dies at 79.

Associate Justice Antonin Scalia dies at 79.

Associate Justice Antonin Scalia, the longest serving member of the current Supreme Court, died yesterday at the age of 79. Nominated by President Reagan in 1986, and confirmed by the Senate 98-0, Scalia will be remembered for his legal mind, his tenacious questioning, and his ever-present sense of humor. Scalia’s father, Salvadore, was an Italian immigrant, and his mother, Catherine, was a first generation Italian-American who worked as a school teacher. He was raised in Queens, New York, attended public school, and was an excellent student.  He attended Georgetown University, where he graduated valedictorian in 1957. He obtained his law degree at Harvard.  While in Cambridge, he met his wife of 48 years, Maureen McCarthy.  Together, they had nine children.  After working both in the private sector, as well as in academia, he entered into public service in the Nixon and Ford administrations.  President Ronald Reagan appointed him to the Court of Appeals for the District of Columbia in 1982, and four years later, nominated him to Associate Justice of the U.S. Supreme Court.

Justice Scalia may best be known for promoting an originalist judicial philosophy. He believed that the Constitution should be interpreted in terms of what it meant to people upon its ratification, and he espoused that is the best method of keeping judges’ personal views from influencing their opinions.  Others, like Judge Richard Posner, are quick to note that Scalia often used originalism to rationalize his opinions which conveniently aligned with his far right ideology. Moreover, may cases in front of the Court involve issues not specifically mentioned in the Constitution, or technologies which didn’t even exist just a few decades ago.  Scalia was also a vocal critic of judicial activism. Defined as unelected judges thwarting the will of the people, it is best measured by the willingness of a judge to overturn congressional statutes or presidential actions.  After all, both Congress and the President are the people’s representatives, subject to re-election every two, four, or six years.  With the presidential primaries in full swing, rants against judicial activism abound.  Yet, the term is misused, often intentionally.  For instance, when the Court upheld Obamacare, it was an example of judicial restraint because it allowed a law passed by Congress and signed by the President to stand.  Conversely, Burwell v Hobby Lobby, Shelby County v Holder, and Citizens United v Federal Election Commission all are examples of judicial activism.  Each ruling overturned established laws, one of which, the Voting Rights Act, had received widespread bipartisan support for decades.  Cries from conservatives did not ring out upon those decisions since the activism resulted in a verdict that they liked.  The Economist summarized this issue well, stating “Critiques of judicial activism are, in the end, rarely critiques of judicial activism. They are cries of despair masked as principled stances against unelected judges deciding major questions for hundreds of millions of Americans. Everyone favors some of those decisions and objects to others.” Scalia never acknowledged his own strong activist role on the court.

Other forms of judicial activism are equally destabilizing.  For instance, in 2013, the Alliance for Justice issued a report on judicial overreach. They detail methods the Roberts Court uses to satisfy its agenda.  They divide the examples of overreach into four categories:  taking cases that it does not near to hear, answering legal questions not squarely before it, lacking respect for longstanding precedent, and settling questions best left to fact-finders.  For many, it is clear that the ends justify the means.

Less than 24 hours after his passing, the political world is taking aggressive stances over the empty seat.  Article II, Section 2 of the U.S. Constitution states the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.” However, this is an election year and a Supreme Court justice can serve for decades.  Moreover, Justice Scalia was ideologically far right, such that his replacement can shift an often divided court.  Within hours of the news of Scalia’s death, Senate Majority leader Mitch McConnell tweeted, “the vacancy should not be filled until we have a new President.”  Inauguration day is January 20, 2017.  If the Senate stalls until the election, a new associate justice may not reach the bench until spring of 2017.  Conservatives are arguing that such an appointment should not be undertaken in an election year.  However, in 1987, Ronald Reagan nominated current Associate Justice Anthony Kennedy to the Supreme Court.  Democrats had control of the Senate.  He was confirmed on February 3, 1988, by a vote of 97-0, just five days before the Iowa caucuses. He was sworn in two weeks later, six days before the New Hampshire primary.

Above all, Antonin Scalia was a lover of American democracy.  His passing will surely test its strength.

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