The death of Supreme Court Justice Antonin Scalia has set off a fevered debate about the politics of his replacement. But however the issue is resolved — and it could become a unifying rather than a divisive decision — there is a very real sense in which Justice Scalia can never be replaced.
As tribute after tribute from constitutional law experts have attested, Justice Scalia belongs among the most influential jurists in the nation’s history. His brilliant, trenchant Supreme Court opinions, while often in the minority, have profoundly changed the standards of legal reasoning and judicial decision-making.
As Harvard Law School Dean Elena Kagan, now herself a Supreme Court Justice, once put it, Mr. Scalia “is the justice who has had the most important impact over the years on how we think and talk about law.” Citing his emphasis on close analysis of the language of statutes and the Constitution, she said, “His views ... have really transformed the terms of legal debate in this country.”
This view was echoed after Mr. Scalia’s death by the celebrated Harvard Law School scholar, Laurence Tribe, who said, “With his brilliance and wit, he single-handedly transformed the terms of debate about the Constitution and the rule of law.”
It is worth noting that both Ms. Kagan and Mr. Tribe line up on the liberal side of most legal debates while Mr. Scalia was staunchly conservative in his political views.
He was also skeptical of the modern trend toward broad judicial interpretation of the Constitution and congressional legislation.
Without consistent rules for court decisions on that founding document and subsequent statutes, “our process of constitutional adjudication consists primarily of making value judgments,” he wrote. And that substitutes the views of nine justices for the views of the representatives of the people as expressed in statutes and the Constitution. Value judgments, he wrote, are debatable and subject to political challenge because the American “people know that their value judgments are quite as good as those taught in any law school — maybe better.”
Mr. Scalia found the rules for judicial decision-making he sought in the close study of legal texts in their historical context, saying, “Texts and traditions are facts to study, not convictions to demonstrate about.”
He was especially scornful of decisions to rewrite laws, changing their clear meaning, in support of some supposed but indiscernible legislative objective.
Last year, in his dissent to a ruling upholding federal health insurance exchanges (King v. Burrell), he complained that “the Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
Legal scholars have rightly found that Justice Scalia’s well-placed insistence on adhering to clear rules of statutory interpretation and avoiding value judgments has profoundly changed the way the Supreme Court approaches it duties.
Now the president and the Senate must move on with the selection of a successor. President Barack Obama has already properly declined to exploit the possibility of making an appointment during this week’s Senate recess, though there is precedent for recess appointments to the court.
If he now chooses to nominate an almost universally acceptable candidate — of whom there appears to be an ample supply — there is no good reason for the Republican Senate to oppose that person, even if he or she is seen to represent a liberal point of view.
The next president is going to have an opportunity to shape the balance of the court no matter who is chosen to replace Justice Scalia, since it is widely anticipated that two justices — Anthony Kennedy, age 79, and Ruth Bader Ginsburg, age 83 — are likely to retire next year or soon after.
Of course, the Democratic president and the Republican Senate have different views on who the next president should be, so a fight over the Scalia vacancy cannot be ruled out.
But the stakes of the presidential election year are such that it would be risky to bet the outcome on this issue.