U.S. Supreme Court Associate Justice Antonin Scalia was found dead Saturday at a Texas resort, The New York Times reported.
It is a huge loss for the conservative faction of the court, already crippled by Justice Anthony Kennedy’s characteristic wishy-washy conservatism. In another time, maybe, Kennedy could be considered a “moderate,” but in the modern landscape of U.S. politics defined and often immobilized by its bipartisanship, Kennedy is just a “traitor.”
It may seem like I’m digressing here, but the loss of the court’s most conservative justice really becomes a lot more about the future of the center — Kennedy — than Scalia himself, just as Scalia’s death is more about his replacement than his absence.
In the least nuanced view of Supreme Court ideologies, the court now lies even along party lines with four conservatives — Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas and Kennedy — and four liberals — Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan.
But a closer look shows that Kennedy has championed some of the most liberal recent Supreme Court decisions. Kennedy was the swing vote in both United States v. Windsor, which struck down the Defense of Marriage Act, and Obergefell v. Hodges, which legalized gay marriage in all 50 states. He also wrote the majority opinions for both of those decisions in the words that ultimately became the law of the land.
While the argument as to whether or not President Obama should nominate another justice and whether or not it’s constitutionally shrewd for the Senate to refuse a confirmation is far too complex for this amount of space, there are two points I can make rather briefly.
First, the reason Senate Republicans and conservatives in general are attempting to make the case for establishing the longest period of a Supreme Court seat vacancy in U.S. history is because they are terrified at the prospect of another liberal justice taking a seat on the bench. This fear is compounded by the unreliability of Justice Kennedy to hardline conservative ideology.
Even when the court was purported to have a conservative majority, liberal decisions like the ones on gay marriage in 2013 and 2015 have slipped through. Technically, the Supreme Court has been conservative since 1989. And yes, this has been reflected in terrible decisions such as Bush v. Gore and Citizen’s United v. Federal Election Commission, but it still has not inhibited liberal jurisprudence.
A liberal replacement for Scalia poses a huge threat to the court’s reigning conservatism. The possibility of five liberal justices and a moderate Kennedy is horrifying for conservatives. So obviously, Senate Republicans are doing everything they can to block an Obama nomination. That doesn’t make it right, but it definitely makes sense.
Second, I hope the irony is not lost on Americans that Senate conservatives are vowing to shirk their constitutional responsibility to replace a man they heralded as a “hero” for his strict and uncompromising adherence to the precise wording of the Constitution.
But Scalia was not a hero for this exact reason. And despite the fact that he possessed a formidable ability to express them, his beliefs were misguided at best and shocking at worst.
Scalia was one of the leading voices advocating for continuing the death penalty. In 2009, a Supreme Court decision ordered a lower court, the U.S. 11th Circuit Court of Appeals, to review a death penalty conviction after new evidence surfaced that might have proven the defendant’s innocence. Scalia wrote in dissent, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Not only does Scalia hold here that capital punishment is not “cruel and unusual” per the Eighth Amendment, but furthers the claim that a tardy ability to prove innocence does not merit judicial reconsideration. Scalia’s rigid grip on interpreting the Constitution word for word, an ideology known as originalism, crowds out the very valid interpretation that a verdict reached without potentially mind-changing evidence is not a just verdict.
More recently, Scalia demonstrated his lack of heroism with his derisive comments toward people of color pursuing higher education. During a re-argument hearing of affirmative action case Fisher v. University of Texas, Scalia said, according to the Los Angeles Times, “There are those who contend that it does not benefit African Americans to get into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well.”
Views like these are just not suited for a country enveloped in racial tension, and both of these views show how Scalia was woefully unsympathetic to the various struggles of people of color in our justice system, from wrongful convictions all the way to college admissions.
Personally, I am glad Scalia will not be a part of the Supreme Court’s decision on future cases. It is time for a change.
