And just like that, all hell broke loose.
You know that moment on a reality show when the host says, “Hey everyone! We have a surprise for you,” and all the contestants look horror stricken? Well, just when you thought the 2016 election season couldn’t get any more complicated, it did.
The sudden death of Justice Antonin Scalia has evoked a turmoil that even Jeb Bush offering the public a “warm kiss” during a debate couldn’t match. While many on the left are celebratory, I’m not unilaterally so. In Bernie Sanders’s words from Facebook, “He was a brilliant, colorful and outspoken member of the Supreme Court,” and Justice Scalia’s odd-couple friendship with Justice Ruth Bader Ginsburg raised him a bit in my estimation. Additionally, in his death, he rocks the political arena perhaps even more than he could have from the bench, and there’s a piece of me that is simply concerned that his spot will be filled by an ideological twin forty years his junior. Lastly, at this point, I’m so busy watching the GOP debates that if there are confirmation hearings on top of them, then I really, really won’t finish writing my thesis.
By now, newsrooms across the country have wrung every last drop out of their reporters and opinion columnists to dramatize and memorialize and analyze the late Justice. It turns out the 1986 Reagan appointee was a bundle of contradictions. He was the scathing conservative who fancied attending the opera with the Notorious RBG. He was the strict constitutional originalist who interpreted the Founders’ meaning to fit his own purposes. He was the Republican hero who may have just served as the party’s 2016 undoing, as they are forced to choose between being labelled “obstructionist” and allowing the ideological makeup of the Court to shift to the left.
My response to Justice Scalia is mixed. I disliked him on principle—or rather because of his principles and their magnified backward effect on the entire nation. Yet, I deeply respected his intellectual prowess and the dynamism he brought to constitutional jurisprudence. I do, however, want to unravel this idea of Justice Scalia as a bastion of purity, evil but admirable in his consistency and innovation. He was as political as anyone could be, and his model of originalist thought, basing his legal arguments on an attempted understanding of the “original meaning” of the Constitution at the time of its drafting, was at times warped for the purpose of advancing his agenda.
To highlight this point, I want to discuss one of his less frequently mentioned majority opinions, in the 1990 case Unemployment Division v. Smith. The state of Oregon had banned the use of the hallucinogenic drug peyote, which was involved in the religious rituals of the Native American Church. The case boiled down to whether the Free Exercise Clause required an exemption to be granted from this law for those with religious claims. Justice Scalia, in his 6-3 majority opinion, upheld the ban on peyote as applied to members of the Church. He declared that no religious exemptions were constitutionally required from laws that were “facially neutral,” such as the Oregon law, which did not single out religious practice but rather applied to all citizens, and that laws burdening religious practice should not receive strict scrutiny.
If this sounds surprising to you, it’s for good reason. Justice Scalia was widely known for his devout religiosity that at times seemed to manifest itself in his written opinions. In the 1992 case Lee v. Weisman, citing long-standing tradition, he dissented from the majority opinion that conducting prayers at public school graduation ceremonies violated the First Amendment. In September 2014, he told the Colorado Christian University, “I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: That the separation of church and state means that the government cannot favor religion over nonreligion.” In 2015, he condemned the decision in Obergefell v. Hodges (the case recognized the right to same-sex marriage) at Rhodes College: “Saying that the Constitution requires [same-sex marriage], which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.”
While the Free Exercise Clause and the Establishment Clause (applicable to his church/state separation comments) are potentially subject to different interpretations, the divide between his decision in Smith and these other decisions does reflect a tension in his understanding of religious rights under the Constitution. One has to wonder if the reason he didn’t see a constitutional obligation to provide religious exemptions from drug laws had more to do with his views about drugs, and perhaps minority religions, than about the Free Exercise Clause or the Founders’ intent. (It’s notable that Oregon already had a law on the books exempting minors from underage drinking laws when they were involved in Christian religious ceremonies.)
The amount of government regulation Justice Scalia found acceptable also seemed to vary. Juxtapose his decision in Smith with his majority opinion in District of Columbia v. Heller. His Heller opinion held that a D.C. law mandating that lawful weapons be “disassembled or bound by a trigger lock at all times” was in violation of the Second Amendment. Although two different Constitutional amendments are involved, making it a bit apples to oranges, I’m kind of blown away that he could consider the banning of a substance central to religious practice an “unavoidable consequence of democratic government,” but consider the legislative regulation of weapons for safety purposes to be unconstitutional.
Finally, want to talk original meaning? The decision that Justice Scalia signed onto in Hobby Lobby v. Burwell, striking down the employer mandate for contraception coverage in the Affordable Care Act (ACA), necessitated an understanding of corporations as “persons” with religious beliefs that could possibly be “substantially burdened.” It’s pushing it to even say that the Free Exercise Clause originally mandated exemptions from neutral laws (this is a subject of much debate among religious and legal scholars), and it’s even more of a stretch to say that the Founders intended large corporations to be treated as people with religious interests.
I say all this not to undermine him (though I would have loved, given the opportunity, to engage him in an argument) but to commemorate the adroitness with which he disguised political motives behind a veil of scholarly ingenuity. May we get a liberal replacement with equal depth of character and charismatic ability to dance between modes of scholarly thought, this time actually for the general good.
The sudden vacancy on the Court is going to produce a number of changes. With the Court now split 4-4, liberal Circuit Court rulings in decisions that would have split 5-4 conservative are now likely to stand. This could mean a reprieve for public sector labor unions from what seemed like a likely blow, and for Obama’s Clean Power Plan, which was stayed by the Court just last week. Other cases on the docket range from affirmative action to abortion, in a season that was expected to swing conservative after several years of more liberal decisions.
Perhaps the most immediate short-term effect of the vacancy is on the 2016 election. Republican candidates and party leaders seem to have finally united in their opposition to President Obama fulfilling his duty and nominating someone for the empty seat. With vocal disregard for constitutional obligations, Republicans, including Majority Leader Mitch McConnell, have declared that they will block any nominations until next term. It’s a fascinating strategy, because the one thing Americans seem to be sick of is Congress not doing its job. (The 2013 shutdown didn’t do wonders for GOP favorability ratings.) Only time will tell whether moderate voters will be happy to hear about conservative strength as the Senate digs its heels in over any nomination, or whether these voters will be turned off by the blatant partisanship and obstructionism. (Food for thought: in the reverse situation, what would the Democrats do? I don’t know, but obstruction of this level does seem unique to the Republicans of late.)
One thing is for sure: Justice Scalia, in life and in death, has had an unusually significant impact. While I am thrilled about the possibility of replacing him ideologically on the Court, I also recognize the loss of a unique voice. Who else will have the gall to declare majority decisions “pure applesauce” or “interpretive jiggery-pokery”?
Zalph is a member of the class of 2016.