A few weeks ago, the Rutgers-Camden Law School invited me to give a lecture on United States v. Texas. In light of recent events, we have changed the topic to discuss Justice Scalia’s legacy, and the process of selecting the next Justice. This is a timely discussion. The event will be Wednesday, at 12:30 in Room E-110. I will be joined by Dean Rayman Solomon, and Professors Katie Eyer and Kathryn Kovacs. This will be a memorable discussion.
Over the following days, weeks, months, and years, there will be countless remembrances and anecdotes about how Justice Scalia has touched all of our lives. One such experience stands out from fairly early in my academic career. In January 2013, Justice Scalia and Bryan Garner spoke at the Federalist Society Faculty Conference, which was held in New Orleans alongside the AALS. (Back then, we were still in the shadows; no longer). During his brief, informal remarks, with a drink in hand, Justice Scalia offered some timeless wisdom to the law professors in the room.
Scalia recalled that when he first started teaching at the University of Chicago, he promised himself he would always put his students first, and would never tell a student he didn’t have time because he needed to finish an article. But slowly, he succumbed to temptation, and began to put greater and greater importance on scholarship. One day he found himself thinking he didn’t have time to meet with students. He was very upset with himself for that, and decided to change his course. He warned all of us–including your humble blogger, who at that point had only been teaching for about 5 months–to never forget about the students, and not to be intoxicated by the lure of scholarship.
Professor Antonin Scalia practiced what he preached. He would go on to be the original faculty adviser for the Federalist Society, an organization that grew beyond his wildest imagination in his shadow, and will endure for generations in his memory. Even after he was appointed a Judge, Scalia continued to barnstorm the country, teaching audiences of all backgrounds about the Constitution. (How many of you heard Scalia personally say the Constitution was “Dead!”). And, as he liked to remind us, he wrote his pointed dissents not for the moment, but for casebooks, so professors would discuss his writings for generations. (Hint: his strategy worked).
Paul Caron links to an article Justice Scalia wrote that speaks to the importance of teaching, and the enduring legacy it leaves on the rule of law:
What endures is the human spirit, and if I have any legacy, anything that really endures, it is in the preserving and passing on of that spirit.
I say much the same thing to law faculties when I have the occasion to speak to them at faculty lunches. They are obsessed with publishing. They think this is going to be their mark on the law, their legacy. I tell them how foolish that is. The shelflife of the great American law review article is about five years, and of the great American treatise maybe 25; after that, they’re just of historical interest. What endures is what happens in the classroom. I still have people come up to me who were my students at the University of Virginia, in the 1970s for Pete’s sake, who are full of gratitude and say, you know, I was in your contracts class and you lit a spark in me for the love of the law and I never lost it. Some of those people have passed it on to others. So I tell the law professors, that’s where you make your mark. That’s where your legacy will be, in passing on your spirit of the law to others who will pass it on once again.
Scalia’s message has stuck with me. Teaching at the South Texas College of Law, where teaching is the priority–and indeed, for purposes of our tenure process, weighs more heavily than scholarship–has helped me realize just how right Justice Scalia is. A few judges may read my briefs; a few professors may read my articles; a few lawyers may read my blog. But I have roughly 250 students a year, who are required by the ABA cartel to sit in my classroom for 56 hours a semester, and listen to me talk about the law. I do not take that obligation lightly. Beyond anything I write, the greatest impact I will have will be my students, and whatever spark I can light in them. We owe it to Professor Scalia to do no less.
On May 23, 1979, the American Enterprise Institute held a discussion on the constitutional convention, with four legal luminaries: Paul Bator, Walter Berns, Gerald Gunther, and Antonin Scalia. Today, the American Enterprise Institute has posted a transcript of the proceedings online. Kudos to Adam White who (somehow) re-discovered it last week, and helped put this into motion. There is so much wisdom here, but I will draw attention to one passage where then-Professor Scalia addresses concerns about a runaway convention:
PROFESSOR SCALIA: I just want to make sure I understand Professor Gunther’s view on this matter. I understand your process objection: that the states, in your view, have made these calls without understanding what they entail. Now, suppose they do understand what is entailed-the risk of having a runaway convention. Do you say they should do it, or not?
PROFESSOR GUNTHER: I have no constitutional or process objection for a call with full knowledge of the risks. I suspect that our views differ as to whether the risks are worthwhile. But I have no constitutional objection if the states under stand and accept my view of what a convention may do, and nevertheless want to go ahead.
PROFESSOR SCALIA: I suspect that you might not feel so strongly about your process objection if you felt more strongly about whether they should go ahead or not. To some extent, the debate boils down to how pleased or displeased one is about what is likely to come out of a convention; how necessary or unnecessary one thinks the product of the convention happens to be.
I hope to study this more closely, in the wake of Justice Scalia’s untimely passing.
In May 2009, Justice Souter had already announced his retirement. David Axelrod–close adviser to President Obama–writes about a remarkable interaction he had with Justice Scalia at the 2009 White House Correspondent’s Dinner:
Justice David Souter, Scalia’s longtime colleague on the court, had just announced his retirement, creating a vacancy for President Obama to fill. Scalia figured that as senior adviser to the new president, I might have some influence on the decision — or at least enough to pass along a message.
“I have no illusions that your man will nominate someone who shares my orientation,” said Scalia, then in his 23rd year as the court’s leading and most provocative conservative voice. “But I hope he sends us someone smart.”
A little taken aback that he was engaging me on the subject, I searched for the right answer, and lamely offered one that signaled my slight discomfort with the topic. “I’m sure he will, Justice Scalia.”
He wasn’t done. Leaning forward, as if to share a confidential thought, he tried again.
“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”
Among the leading candidates to replace him were Sonia Sotomayor, Dianne Wood, and Elena Kagan. I can see this as a sleight against Justice Sotomayor, who received the selection in 2009. Especially since Nino favored Kagan over Sotomayor, saying “I hope he sends us someone smart.”
My LexPredict colleagues–Mike Bommarito and Dan Katz–developed a post based on FantasySCOTUS data about how Scalia’s absence affects pending cases. For cases that have been argued, and voted on in conference, but not yet decided publicly, Justice Scalia’s votes are voided. If Justice Scalia’s vote was not the deciding vote, then the case can be decided as usual. However for cases where Justice Scalia’s vote was the deciding vote, the Court can either affirm by an equally divided Court, or schedule the case for reargument next term.
FantasySCOTUS identified four cases, already argued, where Scalia was likely to be in a majority opinion in a 5-4 case:
Frankly, a 4-4 decision in these four cases, or a decision to reargue it next year, would not be that big of a deal. These are all issues that are capable of repetition, and would not evade review.
For cases that have not yet been argued, there are big question marks.
First, the contraceptive mandate cases are in a bizarre posture. The seven granted petitions were all appealed from judgments for the government by the lower court. However, one decision from the 8th Circuit–which caused the Circuit Split–would remain. In theory at least, the Court could reargue the seven petitions next year, or reargue the case. However, the intervening election may moot the issue. A Republican president could expand the scope of the religious employer exemption (as opposed to the accommodation) fairly easily, and get rid of the entire issue. (What executive action giveth, executive action taketh away).
Second, United States v. Texas is in an interesting posture. Remember how the SG urged the Court to resolve the case this year before the election? This case can’t be kicked over for reargument. It has to be decided now, because the next President very well may rescind it.
Third, Whole Woman’s Health v. Cole–the Texas abortion case–is not essential to decide this term. In some respects, a 4-4 affirmance may save the Court from having to set any bad abortion precedent with a short bench. This issue will percolate back up, as many other states have implemented similar abortion laws.
Fourth, the never-ending case of Abigail Fisher, may not be resolved again! We started with 8 Justices, because Kagan was recused. Now we are down to 7. This case could actually go 4-3, if you can imagine. In the period before Powell and Rehnquist were confirmed, there were only 7 Justices. It was unclear what the weight of a 4-3 decision even was! Hopefully, we get something with at least five Justices in the majority
So in summary, the only case where a 4-4 decision would be a really, really big deal would be U.S. v. Texas. The others, frankly, can sort themselves out later.
Three other quick points.
First beyond the cases already granted, the absence of Scalia will be felt in conference, as it will be harder to garner a fourth vote for certiorari, and a fifth vote for a stay. The Clean Power Plan order last week was impossible to grant without Scalia. And no, the SG will not ask for reconsideration, as you need five votes for that, which he won’t get.
Second, for cases that were already assigned to Scalia, authorship will have to be reassigned. This will make predicting authorship impossible, among other things.
Third, I suspect the Court will severely dial back on the number of petitions granted for next term, as there is so much uncertainty about what happens. If there was any hope to get four votes for certiorari in the Second Amendment case from Maryland, it just got less likely.