With the sudden passing of Justice Antonin Scalia, the United States has lost a great justice and a Great Dissenter. The Supreme Court has known only a few Great Dissenters, so called not only for their contrarianism but for the ultimate triumph of their constitutional commitments. The first was Justice John Marshall Harlan, whose dissent in Plessy v. Ferguson excoriated a segregationist majority for “put[ting] the brand of servitude upon a large class of our fellow citizens, our equals before the law.” The second was Justice Oliver Wendell Holmes, Jr., whose spirited defense of free speech in Abrams v. United States ultimately became a cornerstone of the Court’s First Amendment jurisprudence. Justice Scalia wrote with the moral clarity of Harlan and the surgical precision of Holmes, but the next presidential election will determine whether his legacy as a Great Dissenter eclipses that of both men.

Justice Scalia’s death presents a perfect and unprecedented storm. He leaves behind a court that is evenly divided on ideological grounds during the year of a presidential election. It is likely that the President and Senators who are elected into office this November will decide who will fill the vacancy left by Justice Scalia. Not since the nation’s first elections in 1788 has the United States faced an election in which all three branches of government are up for grabs.

President Obama has made clear his intention to nominate a successor to the vacancy on the high court, but it is doubtful that the Republican Senate will provide the advice and consent required by Article II of the Constitution. Indeed, the Senate may well opt to table the issue altogether through a cloture vote.  The only alternative left for the President would be a recess appointment, but this would require that the Senate go into recess in time for the President’s appointee to participate in the cases presently before the court — and the stakes in the current term are high enough to warrant the Senate staying in session for the foreseeable future.

The Supreme Court is presently considering cases concerning the legitimacy of executive non-enforcement, the constitutionality of affirmative action, the limits of freedom of association, and the scope of reproductive rights.  In short, key aspects of President Obama’s legacy are on the line.  If the Court, as presently constituted, were to decide each of these cases by a 4-4 vote, the Circuit Court rulings in each case would stand.  So President Obama has an interest in seeing to it that a recess appointment – even if short-lived – is present on the Court to ensure a majority for his political agenda. His appointee would surely become a lightning rod in the next election, but that is a risk the President might be willing to take in order to secure favorable rulings.

There is perhaps no greater vindication of Justice Scalia’s intellectual commitments than the perverse political stakes of his death. Scalia believed that the Constitution made “We the People” sovereign, it made the political branches the sovereign’s servants,  and it made the federal judiciary “the least dangerous branch” by investing in it the limited authority to decide legal disputes between adverse parties. The Constitution did not enthrone the Supreme Court at the apex of government; nor did it confer upon the high court’s justices the oracular power to decide general questions of law or matters properly left to the political branches. Taken in this light, Scalia’s commitments to textualism and originalism were not mere methodological preferences; the separation of powers doctrine demanded nothing less.

Scalia believed that the proper way to interpret a law was by looking to the plain meaning of its text. His textualism placed the burden on legislators to translate their intentions into law by crafting precise and definite legislation.  For judges to supply clarity and purpose where legislators’ reasoning was muddled was, in Scalia’s view, nothing short of judicial overreach into the proper province of the political branches. Legislators are, after all, subject to electoral recall. Judges are not. To Scalia the Textualist, statutory history was unreliable, and clairvoyance had no place on the bench.  What is more, Scalia saw congressional acquiescence in intentionalism as tantamount to an abdication of legislative responsibility. As he memorably dissented in Tennessee v. Lane, the function of the judiciary was not to “check Congress’s homework.” Rather, its function was simply to say what the law is.

Just as the words of laws had definite meanings to Scalia the Textualist, so too did the words of the Constitution have definite meanings to Scalia the Originalist. The Constitution was, to be sure, a document for posterity; but it was not a “living document” whose meaning gyrated with the fickle oscillations of political vogue. The role of the judge was to reconstruct the Framer’s understanding of the original meaning of the text. Scalia acknowledged that this interpretive enterprise was imperfect, but it was the least imperfect of the options available. It provided, at the very least, a bright-line rule for interpretation. By contrast, the “living constitution” approach invited a degree of subjectivity inimical to the political independence and constitutional integrity of the judiciary.

Scalia’s commitment to judicial restraint could also be seen in his decisions on criminal due process. Here, he saw the jury as a necessary and salutary restraint on the power of the judge, a protection enshrined in the Sixth Amendment right to a jury trial. In Apprendi v. New Jersey (2000) he joined a 5-4 majority in invalidating an additional penalty imposed by a New Jersey judge because the additional sentence had not been submitted to the jury.  Scalia affirmed the ruling four years later in Blakely v. Washington (2004), writing for the 5-4 majority: “Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”

It was in Scalia’s dissents, which could be at once blistering and elegant, that his constitutional commitments were most forcefully rendered. His dissent in last year’s gay rights case, Obergefell v. Hodges, exemplified how he subordinated what he viewed as policy choices to constitutional principles. With almost breathtaking abruptness, his dissent began: “The substance of today’s decree is not of immense personal importance to me.  The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.” But, he continued:

It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

This preoccupation with legitimacy and self-rule unified Scalia’s jurisprudence.  If his seat on the court remains unfilled by November, Justice Scalia’s full-throated constitutional contrarianism could well play a decisive role in the next election.


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