OT 2016

Justice Thomas Asks a Question!

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After ten years without asking a question at oral argument, Justice Clarence Thomas broke his silence. His question came last week in Voisine v. United States, a case that considered whether a domestic assault conviction qualifies as a federal “misdemeanor crime of domestic violence,” which in many states leads to a ban on firearms possession. (For more details on the case, check out SCOTUSBlog’s coverage.)

The assistant to the U.S. Solicitor General Ilana H. Eisenstein faced an unusually quiet bench. Just as she was prepared to finish up her argument, Justice Thomas’s deep voice rumbled through the courtroom. “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?” he asked. Regular courtwatchers in the audience were startled. A sleepy morning at the Court suddenly got interesting. “Everyone shifted forward in their seats and there was a look of shock on many spectators’ faces,” reported Mark Joseph Stern in Slate. All of a sudden the most reticent of justices was suddenly channeling the spirit of his recently departed, unapologetically vocal colleague, as he relentlessly pressed Eisenstein.  At one point he even seemed to make a veiled reference to the possible implications of replacing his frequent ally Justice Scalia with a more liberal justice, when he described the right to possess a gun as a constitutional right “at least as of now.” Justice Thomas  followed up with an additional eight questions, in an exchange that lasted for six minutes. According to Adam Liptak in the New York Times, Thomas emerged the victor of this particular exchange.

Listen to the full exchange via Oyez here:

The full transcript is available here.

Justice Thomas, who was appointed to the Court in 1991, was never a particularly vocal presence in oral arguments, but he would contribute occasionally to the discussion. His most noted comments came in 2002 in oral arguments in Virginia v. Black. The case considered whether the criminalization of the burning of a cross violated the First Amendment.  According to the account of New York Times reporter Linda Greenhouse, “it was not clear how the court was inclined to decide it— until Justice Clarence Thomas spoke.” Thomas’ brief comments transfixed the courtroom. A burning cross is “unlike any symbol in our society,’” its only purpose “to terrorize a population,” said Justice Thomas, the only African American on the Court. “The other justices gave him rapt attention” as he spoke, reported Greenhouse. “Afterward, the court’s mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute’s constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.”

Listen to the exchange here:

But between 2006 and last week, Thomas offered nary a question during oral argument. Thomas has offered varying explanations for his silence, the most common being that he feels the bench asks too many questions already and he would rather allow the attorneys to make their arguments. Some, most notably Jeffrey Toobin,  have criticized Thomas’ silence as indicating a problematic detachment from the proceedings of the Court.   The only comment he made during oral arguments during this period was a joke he cracked in 2013 during arguments in a case called Boyer v. Louisiana. There was considerable debate about what exactly Thomas said, but it was eventually confirmed to be a joke about the quality (or lack thereof) of a law degree from Harvard.  

Listen to it here:

Justice Thomas’ contributions, while rare, have added much to the dynamic of oral arguments at the High Court. Now the question is whether, with Justice Scalia gone, Justice Thomas will find more opportunities to step into the fray of oral argument, like he did last week.

Weekly Roundup

Weekly Roundup, March 4, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

At Monday’s oral argument, Justice Clarence Thomas asked questions from the bench for the first time in ten years. Reactions from NPR, The Washington Post, USA Today, and The New York Times.

“The public deserves a court that is more transparent and accountable,” wrote BloombergView’s Editorial Board, in a critique of the Supreme Court’s lack of a code-of-conduct policy for Justices.

The lights went out at the Court On Tuesday during oral arguments in Nichols v. United States, a case about sex offenders traveling abroad. Analysis on the case can be found at SCOTUSBlog.

Discussions on the implications of Scalia’s death continue. The LA Times did a retrospective of the last great clash between president and senate over a Supreme Court nomination during the Reagan Administration. The Guardian put forward the possibility of a Republican nomination, while The Economist discussed the damage the Republicans are doing “to the institution of the Supreme Court as an arbiter of the nation’s disputes and to the American system of justice itself.” CNN discussed its own poll that showed most Americans want to see Obama fill the vacancy with a nomination, but they are divided on what ideological leaning they’d like that nominee to have.

Tuesday, the Justices released two opinions on Lockhart v. United States and Gobeille v. Liberty Mutual Insurance Co.. Commentary on Lockhart from Bloomberg View, and Gobeille on Forbes. Politico covered both.

The Court heard one of the most anticipated cases of the Term on Wednesday in Whole Woman’s Health v. Hellerstedt, a challenge to Texas’s new abortion regulations. The LA Times wrote that without Justice Antonin Scalia, “it is highly doubtful the Texas case will yield a broad conservative ruling that gives states a green light to adopt ever-stricter restrictions on abortion.“ Previews of the issues can be found at Fox News, The Atlantic, The New York Times, and the ISCOTUS blog. The Washington Post highlighted an interview with Justice Ginsburg on how she thought landmark abortion case Roe v. Wade should have gone differently. At Slate, Dahlia Lithwick argued that the powerful presence of three female justices in this case showed that “the gender playing field at the high court was finally leveled.” Other post-argument analysis at USAToday, New York Times,  and NPR.

Abortion, OT 2015

Abortion Back at the Supreme Court—What to Read

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Today we hear oral arguments in Whole Woman’s Health v. Hellerstedt, the Supreme Court’s most significant abortion rights case since Planned Parenthood v. Casey (1992). At issue is a Texas law that requires abortion providers to comply with the same health regulations that apply to ambulatory surgical centers and that requires doctors performing abortions to have admitting privileges at a nearby hospital. As we await reports from the Court, here are some readings that illuminate the issues.

Check out Health Affairs Blog for a detailed critical analysis of the effects these regulations would have on access to abortion in Texas. The conclusion: not only would the law do little to make abortions safer, but, by reducing the number of abortion providers, it would have potential harmful health effects.

At the Atlantic, Garrett Epps argues that precedent requires the Court to strike down these abortion regulations. The 5th Circuit ruling that upheld the Texas regulations, he argues, “verges on old-fashioned defiance” of Supreme Court precedent.

On the other side, turn to the Washington Examiner to read the president of Students for Life of America defend the Texas regulations as a necessary fix for a an area of health services rife with safety issues.

Which way will the Court go? For some efforts to get into the head of the likely swing vote in the case, Justice Kennedy, go here and here.

The New York Times published a fascinating profile of the lawyers who will argue the case before the Supreme Court. The Times also has a helpful Q&A on the abortion case.

History of the Court, Justices

Justice Scalia and the Transformation of First Amendment Jurisprudence

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Post by Steven Heyman, Professor of Law at IIT Chicago-Kent School of Law. 

Antonin Scalia served on the federal bench for over three decades, first on the U.S. Court of Appeals for the District of Columbia Circuit (1982-86) and then on the U.S. Supreme Court (1986-2016).  This period coincided with a remarkable shift in our nation’s ongoing debate over the meaning of the First Amendment.  Traditionally, liberals defended a broad understanding of the constitutional freedoms of speech, press, and association, while conservatives believed that those freedoms were subject to legal regulation in the interests of social order, public morality, and national security.  During the 1980s, however, some scholars and activists on the left started to propose restrictions on racist hate speech as well as violent and degrading pornography, on the ground that these forms of expression undermine the equality of women and minorities.  In response, some conservatives began to develop a more libertarian position, which appealed to the First Amendment as a bulwark against what they regarded as the dangers of political correctness.  In recent years, this conservative-libertarian approach has become one of the most important currents in First Amendment law.  The federal courts have increasingly used this approach to strike down regulations that seek to promote liberal or progressive values.

Justice Scalia played a leading role in this transformation of First Amendment jurisprudence.  In R.A.V. v. City of St. Paul (1992), a teenager who burned a cross in an African-American family’s yard was charged with violating a city ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that one knows or reasonably should know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”  Although this ordinance seemed overly broad on its face, the Minnesota Supreme Court interpreted it in a narrow way to apply only to symbolic conduct that fell within the definition of “fighting words” or other categories of expression that have long been held unprotected by the First Amendment.  When interpreted in this way, the ordinance appeared to be constitutional, but the US Supreme Court struck it down.  In an opinion for five Justices, Scalia held that although the government may ban all fighting words, it may not ban only those fighting words that are based on race, religion, or gender, for this sort of “selectivity” raises the specter that the government is seeking to impose an ideological orthodoxy on citizens by punishing the expression of racist views.  

In this way, Scalia took the position that even very narrow forms of hate speech regulation violate the First Amendment.  To reach this result, he had to dramatically expand existing First Amendment doctrine:  while the Court had long held that the government generally may not discriminate between different forms of speech that are protected by the First Amendment, it had never before extended that rule to unprotected categories of speech such as fighting words.  Thus, it was hardly surprising that Scalia’s ruling was deeply controversial.  As several liberal Justices contended in R.A.V., fighting words are unprotected because they convey a message of “imminent violence,” and this “message . . . is at its ugliest when directed against groups that have long been the targets of discrimination.”

Scalia’s approach to the issue of campaign finance reform was no less controversial.  In Austin v. Michigan State Chamber of Commerce (1990), Justice Thurgood Marshall ruled that the government could ban electoral expenditures by business corporations in order to prevent them from using “resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace.”  In a characteristically pungent dissent, Scalia contended that this decision was based on an “Orwellian” view “that too much speech is an evil that the democratic majority can proscribe.”  Scalia’s position triumphed two decades later in Citizens United v. Federal Election Commission (2010).  In that case, the five conservatives declared that bans on corporate electoral speech constituted an impermissible effort to “silence entities whose voices the Government deems to be suspect.”  Scalia contributed a concurring opinion that defended the majority’s position on originalist grounds.  

In both R.A.V. and the campaign finance cases, Scalia used the First Amendment to oppose speech regulations that came from the left.  The same is true of his opinions in cases such as Hill v. Colorado (2000) and McCullen v. Coakley (2014), in which he condemned laws that restricted the efforts of pro-life activists to dissuade women from entering abortion clinics.  Similarly, in cases like Rosenberger v. University of Virginia (1995) and Christian Legal Society v. Martinez (2010), he joined with conservative colleagues to defend conservative religious expression on campus.  

Yet Scalia’s libertarian approach to the  First Amendment was not a narrowly political one, but a more principled stance that made him skeptical of many restrictions on the content of speech, regardless of their ideological origin.  For example, in Brown v. Entertainment Merchants Association (2011), he invalidated a ban on the sale of violent video games to minors, writing a five-to-four opinion that was joined by most of the liberal Justices.  Most strikingly, he provided a decisive vote for the Court’s five-to-four decision in Texas v. Johnson (1989), in which Justice William J. Brennan, Jr. ruled that flag burning was entitled to constitutional protection.  As Scalia later explained on the lecture circuit, while he personally wished that he could put “scruffy, bearded, sandal-wearing” flag-burners in jail, his understanding of the First Amendment did not permit him to do so.

This is not to say that on Scalia’s view the First Amendment protected all speech.  Relying on original understanding and tradition, he accepted the Court’s longstanding position that some narrowly defined categories of expression could be restricted in the name of “social order and morality.”  On these grounds, Scalia maintained that the Constitution provided little protection to sexually explicit expression — such as nude dancing and internet pornography – even when such expression did not meet the Court’s legal standard for obscenity.  Moreover, his conservative-libertarian approach was based on a sharp distinction between the sphere of private liberty and the sphere of government authority.  Thus, at the same time that he contended that the government could rarely restrict speech by private individuals, he insisted that it had far-reaching power to decide what speech to fund (as by denying federal grants to artists to produce indecent or sacrilegious work), as well as to control speech by individuals within public institutions, such as prisoners and public employees. In all of these ways, Scalia profoundly influenced our legal system’s understanding of the First Amendment freedom of expression, and his legacy is a complex and controversial one.  

Weekly Roundup

Weekly Roundup, February 26, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Earlier this week, ISCOTUS featured a piece by Professor Sheldon Nahmod about Scalia’s exhortation to just “get over it” in the 2000 Bush v. Gore case.

On Wednesday, President Obama wrote about his duty to appoint a Supreme Court judge on the SCOTUSblog. Commentary from NBC. Further analysis on the next SCOTUS nomination from The Washington Post and Think Progress. A Republican-saturated senate refused to hold any hearings on potential nominees put forth by Obama. The Washington Post reported on a potential nomination of Republican Brian Sandoval of Nevada to fill the Supreme Court vacancy.

The Court heard oral arguments for consolidated energy regulation cases Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing as well as Taylor v United States (regarding the Hobbs Act) and Utah v. Strieff (regarding the scope of the exclusionary rule).

Further reflections pour in the wake of Scalia’s death. In the New Yorker, Jeffrey Toobin criticized Scalia’s nostalgic worldview. In the Los Angeles Times, Court reporter David Savage wrote of the “complex legacy of a legal thinker who inspired and shaped a generation of conservatives, even though his landmark rulings were few.” In The Washington Post, Amanda Hollis-Brusky predicted that Scalia’s originalism will live on in the hearts and minds of young conservatives (and in Justice Thomas’ jurisprduence).  In contrast, Joseph Thai commented on ACSblog that “originalism’s moment seems over.”

An article on The Atlantic considers how the work of the Supreme Court keeps aging justices’ minds sharp.

History of the Court, OT 2016

“Get Over It”: Justice Scalia and Bush v. Gore, Roe v. Wade and Obergefell v. Hodges

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This post originally appeared on Nahmod Law by Sheldon Nahmod, Distinguished Professor of Law at IIT Chicago-Kent College of Law. Follow him on twitter @NahmodLaw.

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizingsame-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due processright to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.

Justices, OT 2016

The Supreme Court Vacancy: Constitutional and Political Issues

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Post by Vinay Harpalani, J.D., Ph.D., Associate Professor of Law at Savannah Law School. Follow him on twitter at @VinayHarpalani.

With Justice Antonin Scalia’s passing on February 13, the U.S. Supreme Court is at a crossroads.  America is also currently in the midst of a contentious Presidential primary season, particularly on the Republican side. In the coming months we will witness an unprecedented confluence of judicial and electoral politics.  Not since 1988 has a Supreme Court Justice been confirmed during presidential primary season, and not since 1940 has a Justice been both nominated and confirmed in an election year.  The Supreme Court vacancy looms even larger because Scalia was such an influential jurist, capturing the public’s imagination like no other.  Quite fittingly, the impending battle over Scalia’s replacement itself leads to an intertwined discourse on constitutional law and politics.

Republicans immediately declared their intention to block any nominee put forth by President Barack Obama to replace Scalia. GOP Presidential candidates, from frontrunner Donald Trump to Senators Ted Cruz and Marco Rubio, have called for a moratorium on appointing a new Justice until the next President is in office. Senate Majority Leader Mitch McConnell, along with many other Republican members of Congress, has echoed this sentiment. Obama has declared that he will nominate a suitable candidate and expects his nominee to receive a floor vote in the Senate.  

The public dialogue on this arising confrontation pits constitutional values against political gains.  For example, earlier this week, when discussing the Supreme Court vacancy, Democratic Presidential candidate Hillary Clinton suggested that Republicans who “would put politics over the Constitution” are “disgraceful.”  But our Founders designed the Constitution to deal with political strife.  In this controversy, the Constitution cannot be separated from politics.

Article II, Section 2, Clause 2 gives the President the authority, “with Advice and Consent of the Senate,” to “appoint … Judges of the supreme Court[.]”  But there is no mechanism to compel the Senate to actually provide such consent for any given nominee, or even to consider the matter.  Legislatures are inherently inefficient, even when they do not intend to be, and while the Constitution enumerates the powers of Congress, it does not require either the House or the Senate to act on those powers.

Judicial appointments are a hallmark example.  We have seen past instances where the President is of one party and the Senate is controlled by the other, and judicial confirmations come to a standstill.  Although the stakes are much higher with a Supreme Court vacancy, this does not create any new constitutional obligation for either the President or the Senate.

There is also no constitutional crisis or breakdown here.  The Supreme Court can function with eight Justices, even with its current ideological divide.  It is Congress, not the Constitution, that determines the number of Justices on the Court.  In the past, the Court has had six, seven, or ten Justices. The Court’s rules provide for a quorum of six Justices, so Scalia’s vacancy need not be filled for it to hear and decide cases.  

Additionally, many Supreme Court decisions are unanimous—a fact often missed in the public conversation about the Court.  In its 2014-15 term, over 60 percent of the Court’s rulings were unanimous, and less than 20 percent of its cases were decided 5-4.  Although the most noteworthy cases are often close splits, ideological decisions are the exception rather than the norm. Thus, the Court will not be gridlocked on most cases.

Even with some cases decided 4-4, the judiciary will continue to function.  The Circuit Courts of Appeals’ rulings will simply be affirmed, leaving unresolved Circuit splits in place with no higher binding precedent.  This may create problems for the Supreme Court’s legitimacy and public image.  Also, over the long term, a series of Circuit splits on matters of federal law could undermine uniformity and constitutional principles such as federal supremacy.  However, that would take many years, and the impasse over Scalia’s vacant seat is not likely to last long enough for it to occur.

In the unlikely event that President Obama sued the Senate Judiciary Committee for breaching its constitutional duty, courts would almost certainly rule that the case poses a nonjusticiable, political question.  This means that any dispute arising over the nominee’s confirmation would have to be resolved not by the courts, but in the political theater.  Essentially, the political question doctrine puts the Constitution and politics on the same plane, allowing the latter to resolve controversies involving the former.  Even without a lawsuit, the same principle applies to this controversy.

How will it play out?  Regardless of who President Obama chooses to nominate, Republicans will probably continue obstructionist rhetoric and hold up the nomination process for several months—while both parties select their presidential candidates.   During this period, each party will focus mainly on appealing to its base.  The Supreme Court vacancy will continue to be a prominent issue in both campaigns.  A debate over Scalia’s replacement might affect how the GOP views its 2016 presidential nomination.  In recent weeks, establishment Republicans had indicated that they might have to choose among outsiders Donald Trump and Ted Cruz, with most preferring the former.  Some of them reasoned that even if Trump lost the general election, he would be one-and-done—whereas Cruz could gain momentum for future Presidential runs.  With Scalia’s passing, the stakes are higher: they directly involve the ideological future of the Supreme Court.  Unless they believe Trump can really win the general election, Republicans have even more incentive to rally behind an establishment candidate such as Rubio or Governor Jeb Bush.  

In any case, after the contentious Republican primary season, the political calculus around the Supreme Court vacancy may change.  To be successful in November’s general election, Republicans will need to extend beyond their conservative base.  Moderate and independent voters may be put off if Republicans continue to stall, particularly in light of the fact that Democrats will politicize the issue just as much on the other side.  In the past, the judiciary has not usually been a major campaign issue, but it could become more prominent because of the stakes here.

Moreover, Senate Republicans, who will determine the fate of Obama’s nominee, hold 24 of the 34 Senate seats up for election in November.  These include seats in Florida, Ohio, Pennsylvania, Illinois, Iowa, Wisconsin, and New Hampshire—all states that Obama won in 2012.  The GOP will have to gauge the political atmosphere before determining exactly how to proceed.  In fact, Senate Judiciary Committee Chair Chuck Grassley has already gone back and forth on the committee’s future course.  And if President Obama chooses someone who is well-credentialed and politically moderate, the GOP may feel pressure to at least allow a Senate vote on the nominee.  

But voting Obama’s nominee down on the floor could also impact Republicans in November’s election, particularly if the GOP cannot easily oppose the nominee on merit or on ideological grounds.  For example, Judge Sri Srinivasan was confirmed 97-0 to the D.C. Circuit Court of Appeals in 2013, by a Republican-controlled Senate.  Srinivasan, who would be the first Asian or South Asian American Justice, worked in the Solicitor General’s office for both President George W. Bush and President Obama’s administrations and has not taken public positions on any hot button social issues.  Another possibility is the Eighth Circuit’s Jane Kelly, who is also known as a moderate and was confirmed 96-0 by the Senate in 2013.  Judge Aldalberto Jordan of the Eleventh Circuit was confirmed 94-5 in 2012 and would also force the GOP to block a Latino judge.   In making his choice, President Obama will try to maximize pressure on vulnerable Republican Senators.

Can this work for the President?  Republicans have stalled and filibustered many of his lower court nominees without much political consequence.  Nevertheless, this delay would be unprecedented in length and significance, and it would not ultimately succeed unless the GOP wins the Presidency.  Both parties will attempt to mobilize their constituencies around the judiciary more than ever before, ultimately determining not only the Presidency and the Senate, but also the ideological future of our highest Court.  Regardless of the outcome, we can be sure that, unless the two parties manage to reach a compromise, the Supreme Court will take a more prominent role in this Presidential campaign season than ever before.  

Weekly Roundup

Weekly Roundup, February 19, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

The major Supreme Court news story this week, of course, was the death of Justice Antonin Scalia on Saturday. Initial reports from NPR, USA Today, The New York Times, and CNN. Admirers and critics of the Justice have reflected on his legacy. Ian Millhiser at ThinkProgress wrote that, “Scalia was among the most passionate–and persuasive–advocates for judicial restraint ever to sit on the Supreme Court.” On the Washington Post, Scalia’s former clerk Tara Kole reflected on her time with the Justice. Past ISCOTUS director Carolyn Shapiro wrote an op-ed for CNN on “How Scalia Played With Fire” and current director Chris Schmidt wrote on ISCOTUSnow about the Justice’s unique ability to spark public debate about the Court and the Constitution when speaking off the bench.  At The Atlantic, Jeffrey Rosen wrote an appreciative assessment. At Slate, Eric Posner wrote about “The Tragedy of Antonin Scalia.”

Then there are the wave of conspiracy theories surrounding Scalia’s death. Accounts can be found at  The Hill, Mother Jones, the LA Times, and CNN. The Washington Post ran a story examining why people believe these kinds of conspiracy theories.

What will the impact of Justice Scalia’s death be on the Court’s remaining cases this term? At BloombergView, Noah Feldman considers the key cases that may “flip” because of his death. Further coverage from San Francisco Chronicle, Forbes, and USA Today.

Speculations abound on who will fill the empty seat in the Supreme Court. The New York Times offers a Q&A on the process and a piece on what Scalia would want in a successor. Slate had an article on the risk Republicans run if they block a potential moderate Obama nominee.

Justices, OT 2016

How Scalia Played With Fire

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The following opinion piece by Carolyn Shapiro, “How Scalia played with fire,” was posted February 16, 2016, on cnn.com.

The late Justice Antonin Scalia has been justly praised for his tremendous intellect, his resounding influence on the law and his supremely accessible opinions. And since his death Saturday, many commentators have noted his sincere, long friendship with liberal Justice Ruth Bader Ginsburg and others with whom he often disagreed.

Indeed, some have suggested that we use the legendary Scalia-Ginsburg friendship — so well-known that it inspired an opera — as a model for how we should all relate to those whose political views we disagree with.

But Scalia’s personal warmth should not preclude considering to what extent his jurisprudence and his famously acerbic tone may have contributed to the polarized national conversation about the court.

Read more on CNN.

OT 2016

Justice Scalia—Bringing the Dead Constitution Alive

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Scalia_Keynote
Justice Scalia at IIT Chicago-Kent, October 2011

Whether or not one admires the judicial conservatism that Justice Scalia advocated so fervently during his almost three decades on the Supreme Court, the Justice’s legacy also includes a contribution that Americans across the ideological spectrum should appreciate: a dedication to sharing his vision of the Court and the Constitution with the American people.

A good deal of attention to Scalia’s legacy has focused on his provocative written opinions, particularly his famously scathing dissents. But we should also remember his off-the-bench speeches and writing, which I believe will go down in history as just as much a part of his legacy. Whether on the bench or off, Justice Scalia sought to reach an audience beyond the ranks of appellate lawyers and legal scholars who are paid to pay attention to what the justices say. He expressed his views on the law with a passion and style rare for a member of the High Court. He took obvious pleasure in making statements that one could not help repeating, whether in admiration or disgust (or, as often was the case, some of both). He could be quite funny. He wanted to inspire, to provoke, to anger.

When Justice Scalia took to the lectern to deliver one of his countless speeches to groups of students or lawyers, or when he sat for an interview, he came across as remarkably confident and uninhibited. This was not the way justices were supposed to act. Margaret Talbot once wrote in the New Yorker that in these settings Scalia had the ability to produce “the jurisprudential equivalent of smashing a guitar onstage.” He was a showman. “He will be funnier, more sarcastic, and more explicit about his beliefs than most people expect a Supreme Court Justice to be,” she wrote.

What made Justice Scalia so riveting in these public settings was not just his skills as a performer, though. It was that he would speak with such seeming candor about things that perhaps he should not. In recent years, he questioned whether gender discrimination should be accorded heightened scrutiny in equal protection analysis. He categorized contentious constitutional issues such as the death penalty, abortion, and gay rights as “easy” cases to resolve, based on his interpretive beliefs. He dismissed attempts to prohibit laws based solely on moral condemnation by analogizing the constitutional basis for prohibitions on murder and prohibitions on gay sexual relations. He seemed to take pleasure in walking right up to the line of propriety for what a Justice can say. Critics said he lost track of where that line was.

Justice Scalia was also a master of making jurisprudence a kind of personal drama. He told audiences that he did not like “bearded, sandal-wearing weirdoes” who burned the American flag. But he would defend their constitutional right to do so, because legal principle must trump policy preferences. “If you play the old way,” he said, “you often have to reach decisions you don’t enjoy.” Then he would tell a story to bring home the point: The day after the Court struck down a law prohibiting flag burning, he sat down for breakfast. On the table was a copy of the newspaper, with front page coverage of the Court’s ruling. His wife was fixing breakfast and humming “Stars and Stripes Forever.” “I don’t need that,” he told his audience in a sure laugh line. Then came the moral of the story: “The living Constitutional judge never has to put up with that. Whatever he thinks is good, is in the Constitution.” Justice Scalia turned his breakfast into a lesson on constitutional theory and judicial integrity. Agree or disagree with the point of his lesson (and there is plenty to take issue with here), the guy could work an audience.

Scalia’s off-the-bench remarks stirred critics to condemn not only the content of his remarks but the propriety of a Justice speaking so bluntly and provocatively. At times he surely said things he should not have, increasingly so in recent years. But I think it is important to keep in mind what Scalia was doing at these moments. He engaged diverse audiences on a substantive yet accessible level about his deeply held beliefs about the Constitution and the role of the judge. One need not abandon a commitment to an essential distinction between judges and politicians to recognize the benefits, both for the Court and for the nation at large, of Justices taking more time to talk to the American people about their work, particularly when they do so in a manner that is direct, accessible, engaging, and, yes, deliberately provocative and controversial. The Justices are uniquely situated to contribute to public understanding of the role of judges in a constitutional democracy. Instead of chastising Justices for sparking public debate, we should applaud them—and expect more.

For a man who liked to declare that the Constitution was “dead,” Justice Scalia, more than any justice in recent memory, perhaps any justice in the history of the Court, brought to life for the American people the struggle to give meaning to the Constitution.