As my dear friend Vincent Bonventre has written, “All good Americans are saddened by the news that Justice Antonin Scalia has died.” But this is also a moment to consider his role on the Court.
For me, the principal fact is the disclaimerby Justices Thomas and Scalia that democracy has anything to do with the work of the Court. He was consistent. Stopping the counting of votes and overruling democracy in Bush v. Gore, repeatedly deciding that gerrymandering could not be determined by the courts, voting to limit access to the ballot, and overriding legislation designed to protect the equal right to vote where it had been most flagrantly denied. And of course Scalia joined the majority in the infamous Citizens United decision.
These are all part of the Court’s Republican tilt in recent years. This has not been a Court for all Americans, enforcing fair and neutral ground rules for everyone, but specifically a court with its foot on the scale making sure that the Republicans win, the Republicans control the Congress, and Republicans place an imprint on the law.
In the coming term, there are cases awaiting decision that will decide whether an independent, non-partisan commission can be charged with redistricting, what counts as gerrymanderingand what is barred as retrogression in minority rights under the Voting Rights Act, among others. The Court in similar cases has been governed by a 5-4 conservative majority. In the present term, it is unlikely to be able to decide many of them, leaving lower court decisions intact, but not setting precedent for future cases. In effect, whatever the lower court decisions, the questions will remain open for the Supreme Court to decide in the future when it is back to full strength or otherwise has a majority that can reach a decision.
There are other areas of law to consider. Justice Scalia has been a consistent member of a pro-business majority that has emasculated consumer protections in state law as I have described in my new book. He also wrote the decisionthat emboldened gun-rights radicals to intimidate federal officials, fought against rights for gays and lesbians, and helped block even the mildest of efforts to integrate public schools.
Political scientists tell us that those are all areas which have a great deal to do with the stability of democratic regimes, a subject on which I will speak more in a future commentary.
Scalia’s sincere emphasis on textualism sometimes led him to support “liberal” outcomes as George Kannar long since demonstrated. But most of his decisions tracked conservative views far more than textualism or originalismwould have supported.
So Scalia’s absence will make a big difference on the Court. The long run implications, of course, are up to the President and the Senate. No need to repeat all the scenarios here. But whether the Court can be turned before doing more damage matters a great deal to the future of the republic. Stay tuned and, of course, plan on voting for president and senators.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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