Antonin Scalia was one of the most influential Supreme Court justices of the last fifty years.  I had the opportunity to hear him opine frequently in oral arguments before the Supreme Court when I attended them on several occasions with my Carleton College Washington program students. 

I gained greater insight into his judicial approach because he met with my Washington program students six times over the years.  My exposure to him during these meetings totaled about six hours.  He met with my students because he was favorably impressed by our college’s alumni when he taught them as a professor at the University of Chicago law school.

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Scalia in these meetings was blunt, candid and eloquent.  Unlike many other Justices, he was quite willing to discuss the reasoning behind his judicial philosophy of “originalism” and to criticize the contrasting liberal “living Constitution” approach.  He willingly parried many substantive judicial questions, some hostile, from my students.

I distinctly remember his criticism of how the court addressed abortion decisions.  He indicated that all it took to determine the nation’s abortion policy was for five justices to decide that a particular restriction was an “undue burden.”  Scalia thought such decisions should be left up to national and state legislatures.  Why, he argued, should five justices with lifetime appointments make these decisions instead of elected representatives?  That, he claimed, was legislating from the bench.

Consequences of an Empty Seat 

His death actually helps the Obama administration in the short term, because on several cases, the likely future 5-4 conservative majority has vanished.  When the court splits 4-4, the lower court decision stands and the lower courts are now predominately liberal in their judicial orientation.  Several pending cases will likely fall Obama’s way, with two notable exceptions.

One exception is a pending decision on affirmative action in college admissions, where seven justices will rule because Justice Elena Kagan has recused herself because she has recused herself as a prior party in the case.  Another exception is Obama’s executive order on immigration, which was overruled by the lower court.  A 4-4 decision on that would uphold that lower court decision.

The GOP Senate will delay the appointment of a successor until after the 2016 election, making the election unusually pivotal for the future of the nation.  That’s because future control of the Supreme Court, Congress and Presidency will hinge on the election outcome.

In 1968, the Senate long delayed LBJ’s appointment of Abe Fortas to the Supreme Court and that appointment was eventually made by his successor, Richard Nixon.  So such a delay has happened before.

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