Scalia's Legacy

  

When we talk about the passing of a great man we ask what was his legacy, what did he leave behind. In the smash Broadway hip hop musical Hamilton, about the life and death of Alexander Hamilton, after being mortally wounded in a duel with Aaron Burr, Hamilton raps about his legacy:

"Legacy. What is a legacy?

It’s planting seeds in a garden you never get to see.

I wrote some notes at the beginning of a song someone will sing for me.

America, you great unfinished symphony, you sent for me

You let me make a difference

A place where even orphan immigrants

Can leave their fingerprints and rise up"

So, as we think about the legacy of Justice Scalia, what would the song of his legacy, sung by someone else, sound like. Justice Scalia, of course, believed that the Written Constitution should be interpreted based upon the original understanding, the original public meaning, of the ratified text of the Constitution, rather than the living and evolving meaning based upon the moral preferences and reasoned judgment of the “nine unelected lawyers” who happen to serve on the Supreme Court, as he himself often put it.

The Constitution “says what it says, and it doesn’t say what it doesn’t say. ” And like it or not, it means what it says. So if that is Scalia’s song, let’s hear how it might be sung in his absence from this Earth.

 Here is an excerpt from Scalia Dissents, a book about the importance of Justice Scalia’s dissenting opinions, in which the author, Kevin Ring, describes the potential legacy of Justice Scalia by describing what “Scalia’s America” would look like. This is  Scalia’s Song as sung by Kevin Ring.

               [In Scalia’s America]:

All fundamental freedoms would be guaranteed by a vibrant federal government whose power was divided and balanced among three distinct branches. The judiciary would seek to interpret the law, not create it. Congress would make laws, but leave the executive free to enforce it. In following the structure set forth in the Constitution, power would be divided so that no future President, Congress, or Supreme Court could amass sufficient power to dominate the others, usurp another’s authority, and deprive cherished individual liberties.

Democracy also would prosper in Scalia’s America. If the Constitution is silent on an issue, that issue will be returned to the people to make democratic choices for themselves and their communities. Majority votes by citizens, rather than by nine Supreme Court justices, would determine most social policies.

The product of enhanced freedom and revitalized democracy would be greater diversity. In Scalia’s America, the diversity of the different regions of the nation would be evident as each enacted laws reflecting its values. Some states would ban homosexual marriage; others might enshrine the right to same-sex marriage in their state constitutions. Some states would impose capital punishment against all murderers; others might eliminate the death penalty altogether. The states would be free to choose, reflecting the desires of the people. This democratic policymaking and diversity of practice would stand in sharp contrast to today’s Supreme-Court-prescribed, one-size-fits-all standard of deciding issues.

In Scalia’s America, these expansions of freedom, democracy, and diversity would be ably protected by, among other institutions, courts that respect the rule of law. Judges charged with interpreting laws would give words their ordinary meaning. They would moor their solutions of constitutional disputes to the text of the charter and the meaning of its Framers. America would be reborn as a nation of laws and not of men.

Whether Scalia’s America will ever come into being is unknowable at this point. It likely will not occur during his lifetime. However, throughout the Supreme Court’s history, it sometimes happens that views—coherent, textually based, and well argued—once found in the minority, become the basis of future majority opinions. Ultimately, this result is not Scalia’s to achieve; he is not likely to have a role in nominating or confirming future justices to the Supreme Court. But if future Court majorities seek to re-establish a jurisprudence that hews closer to the proper meaning of the Constitution, they will have, in Justice Scalia’s opinions, an enormous intellectual foundation on which to build.

This book was written in 2004, and it is eerie how it foreshadows the precise moment at which we are standing here today. I hope my children and grandchildren get to live someday in Scalia’s America. I doubt if I will, but as long as I live, I will try to sing Scalia’s Song. Heck, maybe I will even rap it.

Scalia's Absence This Term

Here is Josh Blackman's blog post of this:

 

The Impact of Justice Scalia’s Absence on Pending Cases

My LexPredict colleagues–Mike Bommarito and Dan Katz–developed a post based on FantasySCOTUS data about how Scalia’s absence affects pending cases. For cases that have been argued, and voted on in conference,  but not yet decided publicly, Justice Scalia’s votes are voided. If Justice Scalia’s vote was not the deciding vote, then the case can be decided as usual. However for cases where Justice Scalia’s vote was the deciding vote, the Court can either affirm by an equally divided Court, or schedule the case for reargument next term.
FantasySCOTUS identified four cases, already argued, where Scalia was likely to be in a majority opinion in a 5-4 case:

• Bernard v. MN: FantasySCOTUS 5-4 Reverse (Scalia in majority at 63%), Marshall+ 9-0 Affirm
• Friedrichs v. CA Teach’rs Assoc.: FantasySCOTUS 5-4 Reverse (Scalia in majority at 90%), Marshall+ 6-3 Reverse
• Spokeo v. Robins: FantasySCOTUS 5-4 Reverse (Scalia in majority at 92%), Marshall+ 9-0 Reverse
• Franchise Tax Brd of CA v. Hyatt: FantasySCOTUS 5-4 Reverse (Scalia in majority at 72%), Marshall+ 8-1 Affirm

Frankly, a 4-4 decision in these four cases, or a decision to reargue it next year, would not be that big of a deal. These are all issues that are capable of repetition, and would not evade review.
For cases that have not yet been argued, there are big question marks.
First, the contraceptive mandate cases are in a bizarre posture. The seven granted petitions were all appealed from judgments for the government by the lower court. However, one decision from the 8th Circuit–which caused the Circuit Split–would remain. In theory at least, the Court could reargue the seven petitions next year, or reargue the case. However, the intervening election may moot the issue. A Republican president could expand the scope of the religious employer exemption (as opposed to the accommodation) fairly easily, and get rid of the entire issue. (What executive action giveth, executive action taketh away).
Second, United States v. Texas is in an interesting posture. Remember how the SG urged the Court to resolve the case this year before the election? This case can’t be kicked over for reargument. It has to be decided now, because the next President very well may rescind it.
Third, Whole Woman’s Health v. Cole–the Texas abortion case–is not essential to decide this term. In some respects, a 4-4 affirmance may save the Court from having to set any bad abortion precedent with a short bench. This issue will percolate back up, as many other states have implemented similar abortion laws.
Fourth, the never-ending case of Abigail Fisher, may not be resolved again! We started with 8 Justices, because Kagan was recused. Now we are down to 7. This case could actually go 4-3, if you can imagine. In the period before Powell and Rehnquist were confirmed, there were only 7 Justices. It was unclear what the weight of a 4-3 decision even was! Hopefully, we get something with at least five Justices in the majority
So in summary, the only case where a 4-4 decision would be a really, really big deal would be U.S. v. Texas. The others, frankly, can sort themselves out later.
Three other quick points.
First beyond the cases already granted, the absence of Scalia will be felt in conference, as it will be harder to garner a fourth vote for certiorari, and a fifth vote for a stay. The Clean Power Plan order last week was impossible to grant without Scalia. And no, the SG will not ask for reconsideration, as you need five votes for that, which he won’t get.
Second, for cases that were already assigned to Scalia, authorship will have to be reassigned. This will make predicting authorship impossible, among other things.
Third, I suspect the Court will severely dial back on the number of petitions granted for next term, as there is so much uncertainty about what happens. If there was any hope to get four votes for certiorari in the Second Amendment case from Maryland, it just got less likely.