Daily Archives: February 21, 2016

The Significance of Justice Scalia’s Absence from the Court Cannot Be Overstated

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery explains the impact and significance of Justice Scalia’s death, and his absence from the United States Supreme Court, both jurisprudentially and politically. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media (Watch Professor Beery’s Bay News 9 in depth story below).

The death of Justice Antonin Scalia is sad news for those of us who teach Constitutional Law and who value a good debate. That isn’t to say that he was always (or even usually) right, but rather that he served as either the ideal hero or the ideal foil, depending on one’s perspective. He perfectly illustrated the points he wanted to make, and he always sharpened the issues that were the subject of debate before the United States Supreme Court.

The significance of Justice Scalia’s absence from the Court cannot be overstated, either jurisprudentially or politically. Jurisprudentially, his departure marks a turn away from “originalism” and narrow textualism. Justice Scalia believed that constitutional provisions mean now what they meant (or, more precisely, were reasonably believed by readers to have meant) when they were drafted. The Court is now likely to turn more noticeably in the direction of “the living Constitution” – the view that the Constitution, written in general and vague terms, was meant to change with the times. Textually, Justice Scalia tended to shy away from probing too deeply about the purpose animating constitutional provisions, relying instead on the surficial (which is not to say superficial) meaning of words. The Court will likely now tend toward a more searching (and some would say unmoored) approach as to the meanings of the Constitution’s words.

Politically, Justice Scalia’s death has put the Court in the middle of a firestorm. Most obviously, Justice Scalia’s replacement will move the court in one ideological direction or the other. A Democratic appointee would shift the balance of the Court away from rigid interpretive modalities and toward a more contemporary and literal interpretation of words like liberty and equality – moving the Court to recognize more freedom from governmental involvement in decisions around marriage and reproduction and religious doctrine and also moving the Court to strike down more laws as denying equality to disfavored groups like the LGBT community, immigrants, and ethnic minorities. A Republican appointee would freeze the Court where it is and mean likely defeat for progressives on issues ranging from affirmative action to voting rights for ethnic minorities to the deportation of “Dreamers” to the clean-air standards enunciated in President Obama’s recent executive orders.

Perhaps less obviously (but more immediately), Justice Scalia’s death raises questions about the authority of the President and the role of the Senate in appointing Supreme Court justices. As has largely been overlooked by those arguing that the President should abdicate his position as appointer-in-chief, Article II of the Constitution does not say that the President may appoint someone when a Supreme Court vacancy materializes, but that the President shall appoint judges of the Supreme Court. It seems an unremarkable (and hopefully uncontroversial) proposition that the word shall, as used in the law, connotes not just authority, but duty. So those who argue that this President, unlike any before him, would behave in a way that is ultra vires (or that he is any more illegitimate or unsuited to the job) were he to nominate a replacement for Justice Scalia, are on shaky constitutional ground, to say the least.

As to the wisdom of any Senate stonewalling, that is constitutionally left to the Senate. Should the President’s opponents choose to drive this issue into the heart of a contentious political campaign (and should they choose to roll the dice by passing up a potentially moderate nominee on the assumption that somebody like Hillary Clinton will not win the White House and nominate somebody more liberal), the fates will have to sort themselves out.

Professor Brendan Beery: Michigan’s BIG Show with Michael Patrick Shiels

Professor Brendan Beery: WKZO interview


Filed under Faculty Scholarship, Latest News and Updates, Uncategorized