What legacy did Justice Scalia leave on the Supreme Court?

Marcia Coyle, chief Washington correspondent for the National Law Journal and Jamal Green, vice dean at Columbia Law School join William Brangham to discuss Justice Scalia's role and influence on the Supreme Court.

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    The body of Supreme Court Justice Antonin Scalia is expected to be flown home to Virginia over the next 48 hours following his sudden death yesterday in Texas.

    To honor Scalia, President Obama ordered American flags to fly half-staff today at the Supreme Court in Washington and at federal buildings around the nation. Like so many other political leaders, President Obama has offered his condolences to Scalia's family, but he's also promising to fill the vacancy on the high court.

    In an early sign of a possible bitter confirmation battle ahead, the Senate Republican majority leader and Republicans running for president all say the Scalia vacancy should be filled only by the next president. When Scalia died yesterday of natural causes at age 79, he had been on the Supreme Court for 30 years.

    From the moment he took his seat on the high court in 1986, Scalia was a forceful, eloquent, and sometimes controversial voice for conservative issues. His influence and opinions extended into many areas of American life and politics.

    Scalia was in the 5-4 majority in Bush v. Gore, which ended the 2000 presidential election recount and sent George W. Bush to the White House. He also voted with the majority in striking down campaign finance laws as a restriction on free speech.

    Scalia shaped landmark majority decisions, like the Second Amendment case that enshrined the right of individuals to own a gun for self-defense, and cases affirming the Sixth Amendment right of criminal defendants to confront witnesses against them.

    Scalia was equally caustic and witty when he was on the losing side, often writing colorful dissents. He was in the minority when the court struck down a Virginia military academy's policy of admitting only men, and decided Guantanamo prisoners could challenge their detention.

    He opposed decisions upholding abortion rights, same-sex marriage and President Obama's health care plan. The cornerstone of Scalia's legal philosophy was known as originalism, a strict interpretation of the Constitution as the framers wrote it in back in the 1780s.

  • ANTONIN SCALIA, Associate Justice, U.S. Supreme Court:

    They never took out these issues: abortion, homosexual conduct. Nobody ever thought that they had been included in the rights contained in the Bill of Rights, which is why abortion and homosexual sodomy were criminal for 200 years.


    Scalia often said the Constitution wasn't a — quote — "living document" to be reinterpreted by judges to fit changing times.

    In a 2012 interview with the "NewsHour"'s Margaret Warner, Scalia explained his unwavering view of the Constitution.


    It doesn't have to evolve over time. If it — if it was up to the courts to make it evolve over time, there wouldn't have been a provision for amendment. It contains a provision of amendment precisely because the framers understood that they may find some provisions in the future are not good and additional provisions are needed.


    Scalia was a devout Roman Catholic who leaves behind his wife, nine children, and 36 grandchildren. The only child of Italian immigrants, Scalia was proud of being the first Italian-American Supreme Court justice, as he told a 2015 PBS documentary.


    When my confirmation was final, I got cartloads of mail from Italian-Americans just expressing their pride in my appointment. I had no idea that it meant that much.


    After growing up in Queens, New York, Scalia graduated first in his class at Georgetown University and then with high honors from Harvard Law School.

  • MAN:

    Put your left hand on the Bible.


    After working in the Justice Department and as a federal judge, Scalia reached the pinnacle of the legal profession when President Ronald Reagan nominated him to fill the vacancy left by retiring Chief Justice Warren Burger. The Senate confirmed him unanimously 98-0.

    When he died yesterday, Scalia was the longest serving of the nine Supreme Court justices.

    For more on Justice Scalia's role and his influence on the court, I am joined from Washington, D.C., by Marcia Coyle, the chief Washington correspondent for "The National Law Journal," and Jamal Greene, a professor and a vice dean at Columbia University Law School here in New York.

    Thank you both very much for being here.

    Marcia, I would like to start with you. Just give me your take on Scalia's lasting legacy.

    MARCIA COYLE, "The National Law Journal": Well, William, I think his legacy will be in several areas.

    First of all, and perhaps most importantly, is his approach to constitutional interpretation, as well as intention of statutes. He was, what he said, called himself, an originalist, in that when he interpreted the Constitution, he would look at how the words of the Constitution were understood at the time of the framers.

    He also was a textualist, meaning he would look at the words in the statute and, if the meaning was clear, that was the end for him. I think both approaches really have been taken to heart by a whole generation of young legal scholars and others as well, practitioners, even politicians.

    He was a force in conservative legal thought. And then also I think his legacy will be felt in certain areas where he led the court, for example, two areas. One, he reinvigorated the meaning of the confrontation clause in the Sixth Amendment. That is the clause that says a criminal defendant has the right to confront his or her accusers.

    He would accept no surrogates. The accuser — whoever, for example, tested the DNA blood in a case had to be there on the witness stand. And, secondly, he also reinvigorated the role of juries in trials, criminal trials. They were the fact-finders. They were the ones who had to — the prosecution had to prove beyond a reasonable doubt any facts that would increase a sentence.


    Jamal Greene, I know you have said this in the past, that Scalia's influence was really perhaps greatest outside of the court and less so on the actual rulings themselves.

    Can you explain why that's the case?

  • JAMAL GREENE, Vice Dean, Columbia University Law School:

    Well, he did have a number of majority opinions that he wrote that were significant, as Marcia mentioned, so in the area of the Second Amendment, in the area of the confrontation clause and so forth.

    But I think where Justice Scalia's legacy really lies is in kind of popularizing constitutional theory. So, when we talk about originalism, we don't just talk about it among law professors or just among judges. People and talk show hosts, journalists, politicians are talking the language of constitutional interpretation.


    And this wasn't a popular theory when he first came in.



    In fact, I think within the academy, we all thought it was dead in the middle of the 1980s. But he really played a major role in reinvigorating originalism, both within the academies — so there are lots of scholars now who call themselves originalists, including liberal scholars like Jack Balkin at Yale Law School, who is most famous for this — and outside of the academy, so that, at the Federalist Society, politicians talk about originalism as a kind of starting point in constitutional interpretation.


    Marcia, I know one of the things that will be etched on his stone is his incredible wit and erudition and the relish he seemed to take in the intellectual jousting back and forth.

    You must have seen him argue many a time. What was it like?


    Oh, it was always fun, sometimes surprising, startling.

    You will find that lawyers who regularly argue before the court have said that he really created the model for oral argument. That was very vigorous, fast questioning. And, sometimes, his comments or questions could be quite barbed. He could direct those barbs to his colleagues as well.

    I know that whenever Justice Breyer, for example, mentioned legislative history and interpreting a law based on its legislative history, which Justice Scalia didn't believe in, Scalia would send a barb over to Breyer. But Justice Breyer would just roll his eyes, like, here we go again.

    And his writing style,too, he will be remembered for. He really took great care in how he crafted his opinions, particularly his dissents, which he felt very strongly he was writing for the future.


    Jamal Greene, this — if President Obama — and it is still a big if — if Obama gets to select the next justice, this could be a potentially seismic shift in the court, right?


    Maybe as big a shift as there has ever been in the court in terms of a single justice being replaced.

    Now, of course, the Senate Republicans will do their best to make sure that that doesn't happen. But if you were to have President Obama pick a justice who was congenial to President Obama's views of the Constitution and views about law, he would have one of the rightmost justices in the history of the court being replaced by someone on the left.

    And that's — that would change any number of areas, some of which are dear to Justice Scalia's heart. So, you think about the Second Amendment, for example, that would be — his ruling in District of Columbia vs. Heller would be in jeopardy were he to be replaced by someone on the left side of the court.

    Rulings like Citizens United could potentially be in jeopardy as well. So, you could have an enormous shift. But, of course, everyone knows what those stakes are. And so the Republicans will try their best to make sure that doesn't happen.


    Marcia, what about — I understand that some of the cases in the Supreme Court's current term are as divisive as you can get. There is abortion. There is contraception. There is unions. There is immigration.

    What does his absence now mean for those cases going forward?


    Well, it does create some difficult problems for the court. It all depends on what stage some of those cases were in.

    Generally, the justices sit down after oral argument rather quickly to take at least a preliminary vote on the outcome. If they — Justice Scalia voted on a case, and that case has not yet been publicly decided, his vote will be void. If it should leave a 4-4 split on the court and the court does issue a 4-4 decision, then the lower court's ruling will stand.

    But it will set no precedent for the rest of the nation. It will only be a precedent in that particular court circuit. The justices also have the option of asking for a re-argument in certain cases. That has been done in the past.

    Depending on — for example, there are three cases that I'm going to be watching that have not even yet been argued, but also are very high-profile. The abortion case is scheduled for March 2. Another challenge to contraceptive health insurance is scheduled for the end of March. And then there's the challenge to President Obama's executive action on immigration, which probably will be argued in April.

    All those — those three cases also have the potential to divide 4-4. So there's going to be some difficulty for the court. The court may find narrower ways to decide some of those cases in order to have a majority vote. We're just going to have to wait to see.


    All right, Marcia Coyle, Jamal Greene, thank you both very much for being here.


    Thank you.


    My pleasure, William.


    Read remembrances and reactions to the death of Supreme Court Justice Antonin Scalia. Visit us online at PBS.org/NewsHour.

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