Here’s what journalists need to know for covering Scalia’s death
In the weeks to come, Journalists will be covering a range of stories touched off by the death of Supreme Court Justice Antonin Scalia.
The decisions ahead have the potential to change the political and ideological complexion of the Supreme Court, set off a power struggle between the president and the GOP-controlled U.S. Senate and compel presidential candidates to clarify how they would select new court members.
Journalists will have to familiarize themselves with phrases like "originalist" and will cover the backgrounds of a range of potential nominees. Here's what you will need to know about the dynamics of the Supreme Court and Scalia's legacy in the coming days.
What happens to cases currently before the court?
Votes cast by Scalia in cases that haven't yet been decided publicly don't count, Tom Goldstein at SCOTUSblog explains:
Of course, if Justice Scalia’s vote was not necessary to the outcome — for example, if he was in the dissent or if the majority included more than five justices — then the case will still be decided, only by an eight-member Court.
If Justice Scalia was part of a five-justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions — the Court is now divided four to four. In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.
How could Scalia's death affect the political makeup of the court?
Oyez.org, a repository of Supreme Court information maintained by the Chicago-Kent College of Law, is one of the most authoritative sources on who Scalia was and what he stood for. It chronicles his history of conservative decisions and votes in landmark cases over the past 29 years.
Oyez points to key Scalia stances that could be in jeopardy if the majority of the Supreme Court shifts from Republican-appointed to Democrat-appointed justices.
Justice Scalia supports state’s rights, believes that there is no constitutional right to abortion (dissenting in Planned Parenthood v. Casey, which protected a woman’s right to terminate a pregnancy without undue burden), shies away from laws that make distinctions between protected classes (dissenting in Lawrence v. Texas, which decriminalized homosexual sodomy), favors the constitutionality of the death penalty (dissenting in Roper v. Simmons, which found it was unconstitutional to impose the death penalty on adults for crimes committed while they were legal minors), and endorses an individual’s right to carry firearms (writing the majority opinion in District of Columbia v. Heller, which protects an individual’s right to own a firearm for lawful purposes). Ideologically speaking, Scalia is closer to a moderate conservative like Justice Anthony Kennedy, rather than a far-right conservative like Justice Clarence Thomas.
Among the issues that now come into play if President Obama nominates a left-leaning justice to replace Scalia could be gun rights. Scalia wrote the majority opinion in District of Columbia v. Heller, which held that individuals have a right to own firearms. A Supreme Court without Scalia could make a different decision on gun rights if the issue should come up again.
For a more concise look at Scalia's positions, check OnTheIssues. It tracks Justice Scalia's stance on a number of key issues that come before the court, including abortion, civil rights, crime, drugs and education.
What is an originalist?
Scalia was considered to be an "originalist," meaning he was most interested in aligning his decisions with the original meaning and intent of the U.S. Constitution when it was first adopted. Some call the concept "textualism."
Other justices see things differently. Justice Stephen Breyer and Justice Ruth Bader Ginsburg are considered to be “living Constitution” justices in that they believe the court should consider how the original words in the Constitution fit with how we live today.
That difference played out in vivid ways. Consider, for example, his dissenting opinion in the court's decision to affirm the right to same-sex marriage. Scalia called the decision the "Court’s threat to American democracy."
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
He further said the decision that many considered to be one of the most important rulings in decades for individual rights was "not of immense personal importance to me."
On "60 Minutes" in 2008, Scalia explained why he believed so strongly in “originalism.” He argued that if America was going to progress, it should “progress democratically.” He reiterated his belief that the Constitution is meant to keep changes from happening gradually without legislative action.
The quotable Scalia
Scalia sometimes used lively language in his opinions, especially his dissents. He included phrases like "pure applesauce," "jiggery-pokery" and "SCOTUScare."
Some of his quotes were direct and forceful. Take his stance on abortion, for example:
My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice.
In the days to come, as the shock of Scalia's death sets in, some will recall the more controversial things he said. One such contentious quote arose during an affirmative action case involving the University of Texas :
“There are — there are those who contend that it does not benefit African Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less – a slower-track school where they do well ... One of – one of the briefs pointed out that — that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too too fast for them.”
The GOP-controlled U.S. Senate, of course, could hold up an appointment. Among the leading contenders may be Sri Srinivasan, a native of India and a judge in the United States Court of Appeals for the District of Columbia Circuit. Given the GOP opposition to appointing a justice before the election, it could be important, observers say, that the Senate confirmed him 97–0 four years ago.
Here is a list of other candidates considered to be on the SCOTUS "farm team." There's no doubt making predictions based on this list will become the parlor game of the week around legal circles.