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On the Court

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The news of the sudden passing of Supreme Court Justice Antonin Scalia shocked everyone. He’s 79, but it was still unexpected. One of the benefits of the news is that we learn more about the person – and in this case, the one who is more than a justice.

I admit that at one time I wasn’t a supporter of Justice Scalia on the court. I imagine that me disagreeing with many of his opinions was a prime reason – but in retrospect, it also had to do with no understanding his viewpoint.

A phone conversation with a friend changed my view, but not in the way you may think. It’s important to understand that I consider (and call) my friend a partisan hack, and there is no way his belief system regarding his comment is the same as mine – or even changed my opinion of Justice Scalia’s written opinions.

Although I cannot recall the context of the phone conversation we were having, I probably made a negative comment about Justice Scalia’s presence on the court. My friend explained that he was happy Justice Scalia is on the high court because Scalia is a leading spokesperson for a judicial perspective, and it is important for that voice to be heard.

That statement resonated with me then, it still does today, and will continue to be in my mind tomorrow. If one believes (like I do) that the Supreme Court is a court for all the people, it is imperative that the court have a diversity of thought. There is no question that Justice Scalia was smart and had a defined philosophy, but he also wanted smart justices in the other chairs to discuss the issues from varying views. No wonder he had good personal relationships with Justices Kagan and Ginsberg who are philosophically opposite of him.

Justice Scalia was a lightning rod as people either adored or loathed him on the court. Although I haven’t emphasized it on these pages, but for some time I have felt that the worst recent nomination to the bench wasn’t President Reagan’s appointment of Justice Scalia, but President Bush’s (GW/43) appointment of Samuel Alito.

NOTE: For those who forget, President Bush initially nominated John Roberts to replace moderate Justice Sandra Day O’Conner (retiring). Then Chief Justice William Renquist (conservative) died, and then President Bush changed the Roberts nomination to Chief Justice, which lead to Alito replacing O’Conner. 

Justice Alito is (now and then) unquestionably qualified, but if one believes (as I do) that the Supreme Court is for all the people, Alito’s appointment was a severe shift to one judicial view. Four justices of like mind did not fit my view of the highest court in the land … thus leaving one swing vote.

Probably sooner than later, President Obama will nominate justice for the current vacant position. Sure, there is a lot of political bluster about the vacancy – a topic in itself and not the purpose of this post. President Obama’s nominees currently occupy two of the nine chairs – and there is no doubt that Justices Kagan and Sotomayor are qualified and occupy the same niche on the judicial spectrum – and a space similar to longer-term Justices Ginsberg and Breyer.

I hope President Obama doesn’t make the same mistake as his predecessor made with Justice Alito. Now is the time for President Obama to nominate a moderate to the court … a centrist … A jurist who can swing to the left and to the right to help the court deliver meaningful decision … A jurist who listens to the different views in order to make a decision … A jurist who does not hold a predictable judicial view. After all, the US Supreme Court is for all people, thus apart from one philosophy. Then again, I’m probably asking for too much because the partisans will continue to look after their own selfish priorities, which is not a Supreme Court for all Americans.

59 thoughts on “On the Court”

  1. Frank, I’m not a fan of Alito, either, but I think the absolute worst justice on the SUPCO is that partisan blob, Thomas. Even though I didn’t agree with Scalia at all, I respected him intellectually. W was such an incompetent commander-in-chief, I was expecting him to appoint Thomas Chief Justice. There’s no way that Obama can get away with nominating a liberal to fill Scalia’s vacancy. But if the GOP rejects a moderate who’s completely qualified, that wouldn’t surprise me. They’re a bunch of bigots. If their presidential candidate is The Donald, then hopefully either Hillary or Bernie will be our next president. Last week, my brother sent me a joke with a picture of Obama sipping a drink through straw in a tall cup captioned, “Go ahead Republicans and delay the Supreme Court nomination until after the election so Hillary or Bernie can nominate me.” That would be poetic justice!

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  2. I think that following Scalia’s death I listened to personal stories and felt challenged that I had never considered the man behind the position. I didn’t hold him in high esteem because of differences in opinion and I think that wasn’t very honest on my part. I agree with you that Obama should introduce a moderate for the nomination, if not for more balance on the court, because otherwise there’s only going to be months and months of political posturing. Perhaps we’re going to get a full dose of that anyway. We are living in interesting political times!

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    • Debra,
      I loved the personal stories, and that homily by his son at the funeral helped tie it together for me. At least I too have a better understanding of him as a judge … and disagreeing with him is fine. Meanwhile, time will tell if we get the moderate I’m looking for … I don’t have much confidence in the system to deliver that, but at least I am willing to wait and see.

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  4. It will be interesting to see what happens, no doubt. And I agree–a supreme court justice who does not hold a predictable view would be the best to add, and likely the only one whose nomination won’t hold things up forever from back-and-forth bickering.

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  5. THANKS for an excellent post – one of your all-time best! I wholeheartedly agree with your points, especially (1) that the Supreme Court is a court for ALL the people (LIVING TODAY), and (2) that President Obama should nominate a jurist who listens to the DIFFERENT views (of ALL the people LIVING TODAY) in order to make a decision, and does not hold a predictable judicial view.

    That said, I also agree with New Yorker Magazine writer Jeffrey Toobin that (1) Justice Scalia “devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. (and that) Fortunately, he mostly failed.” And (2) that “in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered ‘originalism,’ a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century.”

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  6. Frank, you probably won’t be surprised that I, for one, won’t miss Scalia at all. He was an intelligent man who loved to argue, but he was playing with fire. He was decisive and damaging to political comity and the kind of compromise his beloved founders intended for our government. Politico accurately said about him,

    He stood in defense of gun rights and capital punishment, while resisting gay rights, abortion and affirmative action. And his rigorous attention to the text of the Constitution and of laws has changed the way liberals as well as conservatives conceive of the role of the highest court.

    That role has, dangerously, become more political, the case of Bush v. Gore being a prime example.

    Scalia’s approach to legal thinking, it is said, was to suss out the founders’ intentions and to resist any changes to the text they produced. To my thinking, this means to exclude any possibility of applying reason because of changes in society or of modernity. Must we be stuck in 1787 forever? I give you Citizens United as a prime example of the fallacy of this thinking. Corporations as people? That’s just nuts.

    Now I’m not saying there aren’t universal truths in the original documents that by right are sacrosanct, the First amendment being one shining example. But in another example, AR-15’s are not muskets. Female voter suffrage is another. The founders’ are not gods.

    Our nation’s political fabric is coming apart at the seams and I see no hope of moderation so long as the GOP controls both houses of Congress. In fact, a win by either Hillary or Bernie is likely to produce even worse legislative gridlock because of the partisanship legacy of Scalia and the intransigence of Thomas and Alito.

    You said,

    My friend explained that he was happy Justice Scalia is on the high court because Scalia is a leading spokesperson for a judicial perspective, and it is important for that voice to be heard.

    That voice was more than heard, it changed the trajectory of government and affected society deeply.

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    • Jim,
      Of course I’m not surprised, but here’s where we differ … As Tim also did, you focused more on Justice Scalia in your comments more than I did in a post that wasn’t about him. … and in a balanced court, his voice should be heard. … and where we would agree, his voice shouldn’t be the court majority … thus my point.

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      • Frank, I re-read your post and I think I understand your intent better now. The judicial perspective held by Scalia and others is obviously, even critically, worthy of debate, especially when, as noted in my and other’s comments here, one such perspective, textualism, has been wielded with such damaging effects. I hope you can see that my previous comment did address that perspective, so I didn’t entirely miss your point.

        I agree that SCOTUS would benefit from moderation and suffer from extremism, but by using Scalia as an example of a judicial perspective that “deserves to be heard”, you clearly touched a nerve with me, Elyse, and others.

        Seems to me that the proper place for discussing judicial perspectives is is in the press and in Congress, and not 30-year experiments on the highest bench. Thus, Scalia’s abuse, yes abuse, of textualism deserves a full public airing in the context of judicial perspective. Your post is helping that, so, thanks.

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        • We agree that the perspective is a perspective, but you will not that I didn’t provide any positives or negatives to that perspective. Other than saying I didn’t always agree with him, I didn’t go into any effects. I knew this post would catch of nerve with the partisans because a more balanced court is something that neither side wants.

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  7. The Supreme Court is supremely as political as the other branches of the government now. That is of course of grave concern as it was not intended/hoped to ever be that way. When negotiation and compromise left Washington several years back this was I guess logical, collateral damage to follow suit…Justice nominees being vetted for how they will vote on specific issues rather than fairly examining, interpreting and setting precedents for execution of all the laws of the land …simultaneously respecting and representing all the people of the land. I do certainly agree at this point any future nominee for the Supreme Court should have a “middle of the road” track record indicating at the very least they put laws before party affiliation. After all…it’s about the law. Well said Frank.

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    • Bruce,
      Thanks for sharing your thoughts that support my main point. I heard an interesting point of contrast the other day. The Court that decision Brown v Board of Education (1956?) was composed of no judges who came up through the ranks … whereas the last 9 judges were all elevated from the Court of Appeals. Just a reference point of change that fits a little into your point.

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  8. I’m not sure there are any middle-of the road folks left, Frank.

    Scalia was paid close adherence to the words of the constitution when they fit what he wanted to rule/say anyway. Significantly less so when he wanted to “legislate from the bench.”

    I heard him speak a couple of times. As long as it was just him, he was pleasant, funny. But when the floor was opened to questions, he was belligerent — both times. Scalia, don’t let the door hit you on your way out…

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    • Elyse,
      Unquestionably, there are someplace between a few and none in Congress because both parties have eradicated them. However, that doesn’t mean they aren’t among the voters. There is evidence that the number of voters who aren’t registered as Dems or Rs is larger than either – although I wouldn’t categorically say that all unregistered are moderates. But one doesn’t hear from this group because because of the lack of representation in DC. Put another way, there are plenty of voters who are fiscally conservative but socially liberal – which is the block that neither party wants – well, except their vote and money.

      As I said to others, I’ve said very little about Justice Scalia, and he wasn’t the focus of this post, thus I counter this song for those of us in the middle. https://www.youtube.com/watch?v=DohRa9lsx0Q

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  9. Frank, Frank, Frank. A moderate? The party would go apoplectic and Hillery would have Obama for breakfast. I love your logical way of thinking and your concern for justice, but your desire just makes too much sense to be practical. He’s going to put up for hearings the most liberal hack he can find. Then when the Repabubbas kick the crap out of him he may put forth a name that comes under your umbrella. We’ll have to wait and see.

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  10. Thoughtful post, Frank. Scalia’s death sure threw a wrench into everything. I’m sure this will be dragged out as long as possible. Everything so much in the air right now. And now this, too.

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  11. after scalia’s death, i posted a statement something like this on facebook: “If there were one justice who i could remove from the supreme court, it would have been scalia.” that set off a great disagreement with a friend who accused me of being callous, insulting, and disrespectful to the character of the person that was scalia.

    i completely disagreed, asserting that i had said nothing at all about scalia as a person, that i knew little and didn’t need to know anything about his character because his character was not important to me nor did his character affect me. his decisions on the bench affected me. i went on to say that if i’m going into court and have a choice of attorney A, a complete jerk who usually wins, or attorney B, a nice guy who usually loses in court, then i obviously can’t worry about the attorney’s character. i need to worry about how well he performs in court. the same goes for a judge.

    my beef with scalia was something that perhaps the other justices are also guilty of, but i don’t know enough to know. on the bench he clearly was not at all sympathetic to the LGBT community, and he was clearly comfortable with rulings in favor is religious groups. that tells me that maybe his personal religious values were seeping into his decisions. as i said, maybe other justices did the same, they were possibly more quiet about it.

    although he’s only one person with one vote, he was instrumental in the disaster that was bush v. gore, something that still eats at me due to the subsequent disaster that was bush 43.

    so that brings me to a question for you. you wrote, “My friend explained that he was happy Justice Scalia is on the high court because Scalia is a leading spokesperson for a judicial perspective, and it is important for that voice to be heard.” would you mind expanding on that? i don’t know you well enough to get a sense of the strength or meaning of “a leading spokesperson for a judicial perspective…” for example, does that mean he did something specifically differently than the other justices?

    i’m always interested in learning something i can only learn from someone else and not a textbook.

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    • Rich,
      As I’ve does with others who have used this post as an opportunity to vent against Justice Scalia, my answer is simple – you’ve said more about him in your comment than I have – and because he wasn’t the issue on the post, I chosen to don’t go down that road.

      In short, I believe “Originalist” is a judicial perspective, and one that Justice Scalia championed. Generally, he framed his arguments around the Constitution’s text and the 85 Federalist papers that supported it … thus establishing original intent. I recall seeing an interview with him explaining this, and I found myself nodding then shaking my head.

      On the other hand, you asked a pertinent question regarding my friends statement. I can’t recall the case we were discussing, but I anticipate I was railing against Scalia’s statements about the case. Yet, the paragraph before the one you quoted helps establish the perspective. Besides, my friend would prefer five or more Scalia’s on the Court,

      If one believes as I do, the Supreme Court is for all, Scalia’s perspective should be welcomed on the court … but not with four or five seats. Personally, three is too many … but I also say the exact some point about the seats on the left. That tells you that I want diverse perspectives on the bench of the highest court of the land … and one swing vote is too few … and personally, so is two.

      Does that help?

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      • it helps. further question: if i’m reading correctly, and i don’t always, you’re basically ok with 4 on the right, 4 on the left, and a swing vote. assuming i’m correct, let’s call that swing voter a “moderate.” would you be ok with 9 moderates?

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        • I don’t like 4 on the right, 4 on the left, one in the middle .. which leaves it up to one justice .. but that is better than 5-4 without a swing.

          In terms of a swing, 1 is better than none, but not is good as 2 .. which is better than one but not as good as three .

          9 moderates? Nope … I wouldn’t want that because I want a range of thought on the court … that’s where Scalia and Ginsburg have a place … thus the max number of swings on the court (in my view) is 5.

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        • it’s both amazing and depressing that so many critical things come down to 5-4 votes. it shows that even when you gather 9 people who are supposed to be among our brightest, we still can’t get a consensus.

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        • one thing i don’t envy is when they’re in the position of deciding what is constitutionally legal versus what is “good” for the american people and the nation. for example, though the Citizens United decision is constitutionally sound, i wonder, or at least i hope, the justices were wavering while thinking, “legal, maybe, but will it produce positive or negative results?”

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  13. Oddly Frank, I am mostly in agreement with you. I have been pondering what I want to say about SCOTUS without Scalia since his untimely death. What most don’t know, Justice Kagan was his recommendation for the bench. She by the way is a moderate. The only true ‘liberal’ Justice on the bench is Justice Bader-Ginsberg. Scalia, though he was verbose and offensive it has only been with the very controversial cases and in the past 12 years or so that he has been legislating from the bench moreso than not.

    Part of what I have been doing is research.

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    • Val,
      You have made my day! Having someone like yourself who is left of center see my point tickled my innards. Thanks!

      Great point about Justice Scalia recommending Kagan, and he did so because he respected her intellect.

      No question that Justice Bader-Ginsburg is the most liberal on the court … but I question “the only”. Just because someone (like Kagan) being to the right of her doesn’t (in my eyes) make her a moderate … so she’s not in my swing category.

      Meanwhile, thanks for making me smile about this post! … but hey … I knew the left and the right wouldn’t agree with it.

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      • I think Frank one would have to look at Kagen and her writing and her decisions, over the course of her career to determine how she is or is not a moderate in her thinking. Just as one would have to look at Scalia to determine how he was not the most Conservative on the bench, despite his vitriolic temperament in recent years.

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  14. It’s a huge responsibility accorded every President, and while I get the politicization of this process- it’s how Washington breathes- I don’t want a court that leans either way. There HAS to be a place for debate without bluster and counter points that don’t have poisoned tips, and that place should be in the highest court.
    I’m naive as all get out sometimes.

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  16. I, too, wish to see someone smart and open-minded. Someone who is impartial to any special interest would be super. My fear is the political posturing that began before the man’s body was cold. This is going to be interesting, telling, and, probably ultimately (predictably) bad for the informed minority who care about the majority. 😐

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