Saturday 13 February, 2016 was a biting cold day in the nation’s capital that seemed like it would go down in history only for its frigid temperature. By mid-afternoon, news flashed across TV and computer screens reporting the passing of Antonin Scalia, an Associate Justice of the Supreme Court.
With three branches of government, including 535 voting members of Congress, hundreds of federal judges and countless members of the Executive Branch, it is a rare occasion when the passing of a single individual can change the course of American governance. The death of Justice Scalia was one of those occasions. In a court split sharply, five votes to four, along ideological lines, Justice Scalia was not just a part of the conservative majority; he was an outspoken leader. His ‘voice’ was heard in sometimes caustic dissents, in aggressive questioning during oral arguments when he seemingly took the role of advocate, and through his writings and interviews.
He supported efforts to restrict the court’s decision in Roe v Wade, protecting a women’s ‘right to choose’; he rejected constitutional protection of same sex marriage; he voted with the majority in Bush v Gore, effectively deciding the presidency in favour of George Bush; he voted to strike down voting rights laws and he wrote the majority opinion in District of Columbia v Heller, striking down a law banning hand guns while protecting, under the Second Amendment, the right to own firearms. He was an ‘originalist,’ meaning he said the Constitution should be interpreted from only the words written by the ‘Founding Fathers.’ This logic led him to question the court’s intervention that resulted in the de-segregation of the nation’s public schools through the 1954 decision in Brown v Board of Education. Justice Scalia’s ‘originalist’ view also meant he disregarded the contemporary context (such as the wave of shootings in public schools or the attempted assassination of President Reagan, who had appointed him) that caused legislators to press for laws banning guns. At a time when the massive wealth of corporations and a few individuals has been channelled to influence federal elections, Justice Scalia sided with the majority in Citizens United v FEC, striking down provisions of Bi-partisan Campaign Reform legislation regulating the expenditures of corporations and unions in support of political candidates.
As a part of the court’s majority, he was a key vote in procedural changes that have had a sweeping impact on American jurisprudence. Court decisions re-defining pleading standards, restricting class actions and compelling arbitration have fundamentally altered the ability of consumers, and those impacted by pervasive workplace discrimination, to bring cases and do so in an open court of law.
My colleagues across the US have, of course, spent the weekend contemplating the tenure of Justice Scalia and the impact of his passing. Nancy Gertner, a former federal judge in Boston and currently a professor at Harvard Law School, sent me the following thought after writing her own insightful piece on Justice Scalia in The Boston Globe: ‘He was at once principled, trying to see everything through the lens of originalism, and at the same time, rigid, unwilling to admit that his constitutional interpretation was distorted by his own conservative calculus.’
Robert Ahdieh, vice dean and K.H. Gyr professor of private international law at Emory University School of Law in Atlanta, noted: ‘There have been few, if any, more forceful writers among justices of the Supreme Court than Justice Scalia. Combined with his sharp intellect and his deep sense of conviction, and his service on the court will long be remembered.’
Jon Karmel, a Chicago based attorney who is one of the nation’s preeminent union-side labour lawyers, drew specific attention to the impact of the Justice’s passing on labour unions in the US: ‘Public sector unions in the United States, which enjoy a membership rate nearly five times that of private sector unions, were sure to suffer a death blow by the Supreme Court. Until yesterday.
‘In Harris v Quinn, a seemingly small case out of Illinois, the Supreme Court last year held in a decision of five votes to four that a discrete group of public employees, non-union home healthcare workers, could not be charged fair share fees because they were not ‘full-fledged’ public employees. That narrow holding was used as an invitation by the conservative majority to overrule a 1977 decision, Abood v Detroit Board of Education – a precedent that is vital to the very concept of public employee unionism. In paragraph after paragraph, page after page, the main Harris opinion written by Justice Alito sought to undermine the legitimacy of Abood.
‘The vehicle for destroying Abood is Friedrichs v California Teachers Association, a ginned up case that rocketed out of the Ninth Circuit on the plaintiff’s consent that judgement was appropriate against her based on Abood. Oral arguments were heard last month and a decision in favour of Ms Friedrichs by five votes to four was expected in June. No more. Labour unions and working people dodged a nuclear bomb. Friedrichs would have bankrupted public sector unions, as Scott Walker did in Wisconsin, and political money spent in favour of workers and their issues would have dried up. That is the point of Right to Work and other dues attacks on unions. Until money is taken out of politics, and maybe a new Supreme Court will do just that, the political playing field cannot be one sided.’
President Obama has committed to nominating a replacement for Justice Scalia. Republican Senate Majority Leader Mitch McConnell has threatened to block the Senate confirmation process until the next president has been sworn in. The Majority Leader’s threat is perhaps the litmus test for the significance of what happened this past Saturday.