U.S. Supreme Court Justice Antonin Scalia was larger than life as an intellect and an influence. His death on Saturday at 79 has left a void that is similarly provocative and outsized.
Sharp of pen, operatic by nature, he changed the terms of judicial debate and led the high court’s conservative majority for nearly three decades. Appointed by President Ronald Reagan in 1986, Scalia left his imprint on crucial matters from same-sex marriage to guns to search-and-seizure to the death penalty.
In so doing, he fueled a resurgent conservative movement with his view of constitutional originalism, the notion that justices could decipher the Founding Fathers’ intent, as opposed to the view that the Constitution is a living document that can evolve as culture and society change.
Many Americans, particularly liberals, disagreed profoundly with his positions, but he rendered decisions that frustrated conservatives, as well.
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With Scalia writing for a 7-2 majority that included liberals, for example, the high court in 2011 struck down a California law that sought to restrict minors’ access to violent video games on First Amendment grounds. Earlier, he was one of five votes to hold that burning the American flag was protected speech.
In 2004, Scalia dissented in the case of Yaser Esam Hamdi, a U.S. citizen who had been captured while fighting for the Taliban in Afghanistan. Scalia said the government could not detain a citizen indefinitely, that it must prosecute him or free him.
In 2001, Scalia wrote for a five-justice majority that police use of thermal imaging aimed at the home of Danny Kyllo to detect marijuana amounted to a search, for which a warrant was required.
Scalia was confirmed by 98-0 vote in September 1986. All Democrats voted for him. Two Republicans did not vote, Jake Garn of Utah and Barry Goldwater of Arizona.
He was, however, best known for his fiery conservatism. Scalia was an only child. He and his wife, Maureen McCarthy, had nine children who have produced 28 grandchildren. He was a Roman Catholic and held strong anti-abortion views.
In 2008, he issued perhaps his most activist decision, redefining the meaning of the Second Amendment and restricting the ability of states and cities to limit firearms.
In 2015, his dissents denounced decisions affirming the right of same sex couples to marry, and upholding the Affordable Care Act, calling the majority’s view “jiggery-pokery” and “pure applesauce.” He concluded that Obamacare ought to be renamed SCOTUScare.
Scalia’s passing leaves the court in a quandary. Any 4-4 decisions would provide no precedent and lower court decisions would be left to stand. Among the cases pending or wending their way to the high court are ones that could unravel the world’s tenuous climate change agreement and restrict abortion rights.
On Saturday, Senate Republican Leader Mitch McConnell, echoed by the Republican presidential candidates debating in South Carolina, said President Barack Obama should not nominate a replacement, and should leave that decision to the next president. They are wrong.
Obama was elected to serve until the next president is inaugurated Jan. 20, 2017, and should do so. As a student of the Constitution, Scalia would be the first to acknowledge that.
But the justice’s passing does make clear the stakes in the coming election, which are higher than ever. As Scalia taught us all, a president’s Supreme Court appointments are among his or her most lasting legacies.