The death of Supreme Court justice Antonin Scalia on Saturday night has set off a bitter partisan fight. President Obama will nominate a successor, but Mitch McConnell, leader of the Republican-majority Senate, has told him not to bother. Republicans vow not to approve any candidate on the grounds that the appointment should be delayed until after the November 2016 election. Scalia’s replacement looks likely to become a central issue in the election campaign.
Scalia was a larger-than-life figure, and he will have a lasting impact on law in the US. As fellow justice Elena Kagan said, ‘The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names… [T]hat is really not the case with Justice Scalia, whom I think is going to go down as one of the most important, most historic figures on the court.’
Appointed by President Ronald Reagan in 1986, Scalia was the most prominent face of the conservatives on the court. He was both cutting and funny, a writer with flair who used phrases like ‘pure applesauce’, ‘interpretative jiggery-pokery’, and ‘argle-bargle’. But it was his philosophical approach – emphasising the close reading of texts and the original meaning of the US Constitution – that made him so influential. He stood opposed to the liberal ‘living constitution’ method, which, he argued, gave judges leeway to apply their own views.
Scalia did not hide his socially conservative views. He became the face of the culture wars, writing prominent dissents in cases involving abortion rights, affirmative action and gay marriage. Liberals strongly opposed him, even hated him (evidenced by all those on social media who dance on his grave). Some critics contend that Scalia’s ‘originalist’ approach was a smokescreen to pursue his prejudices, but there are many examples where he was willing to go against his personal views, such as supporting due process for Guantanamo detainees and protections for criminal defendants.
For those who support freedom and democracy, there is much that Scalia got right. He was far from the authoritarian some made him out to be. He was arguably the most robust defender of free speech on the court. He upheld the right to burn the American flag (as much as it galled him), and he invalidated a law against violent videogames. In a 1992 case, RAV v City of St Paul, he wrote the majority opinion that ruled against a city ordinance that sought to outlaw hate speech.