The unexpected death of Justice Antonin Scalia in February 2016 created the first vacancy on the Supreme Court in 10 years. What made this vacancy so notable was that (1) Scalia was the most influential and prominent conservative on the Court, (2) he stands to be replaced by a President that most conservatives despise and (3) a liberal or even moderate replacement would tip the balance on a Court that has been locked in a 5-4 conservative split for over a decade.
Many Americans do not realize the impact that the nine Justices have in interpreting the Constitution and federal law. The Constitution is a relatively brief document, and its most prominent provisions, including all of the Bill of Rights and provisions delineating the separation of powers, are brief and even vague. Many federal statutes are equally vague, the result of legislative compromises in which Congress leaves it to the Justices to reach a definitive interpretation. The identity of the Justices is paramount in a society that relies on the Supreme Court to issue rulings that remain binding precedent for decades.
Love him or hate him, Scalia was among the most influential judges in modern times. Upon reaching the Supreme Court in 1986 (by a 98-0 confirmation vote in the U.S. Senate), Scalia led the conservative judicial revolution by advocating the “original intent” theory of constitutional interpretation. Under this model, modern-day judges interpret the language of the Constitution by considering what the framers had in mind in the 18th Century. Unlike liberal Justices who believe in a “living” Constitution, strict constructionists will channel the intent of the original drafters to determine what the First Amendment and other provisions really mean.
Court-watchers have come to accept, since at least the early 1990s, that the Supreme Court has been dominated by conservative Justices. This resulted from too few Democratic presidents and the good fortune that Republican presidents had in appointing more than their fair share of Justices. By the early 1970s, the Court had a solid liberal majority that became known as the Warren Court, named after the Chief Justice who helped to de-segregate public schools, expand First Amendment rights, and broadly interpreted the criminal procedure provisions of the Bill of Rights. But in 1969, when Chief Justice Earl Warren retired, President Nixon appointed Warren Burger, a conservative. A year later, Nixon appointed Harry Blackmun. In 1971, Nixon appointed centrist-conservative Lewis Powell and staunch conservative William Rehnquist. Almost overnight, the liberal majority disappeared. President Reagan appointed three more Republican justices, Sandra Day O’Connor in 1981, Scalia in 1986, and Anthony Kennedy in 1988. The Supreme Court slowly moved further and further away from the days of the Warren Court. Scalia was little-known in 1986, but he quickly made a splash as a provocative thinker who promoted a reactionary theory of constitutional interpretation while attacking fellow Justices who disagreed with him. While the media has focused on Scalia’s views on abortion, gay rights and the Second Amendment, it has overlooked his views in other critical areas that affect working people and consumers. Here is a summary of Scalia’s greatest hits in these areas.
Religious Liberty
The First Amendment contains two religion clauses: the Free Exercise Clause and the Establishment Clause. The Free Exercise Clause promotes religious liberty. Until 1990, the Supreme Court for decades had interpreted the Free Exercise Clause as follows: if a governmental policy or practice happened to infringe on someone’s religious beliefs, that infringement would run afoul of the Free Exercise Clause unless the government could articulate a compelling reason for that restriction. If the government could not do so, than that policy or practice could not apply to that individual. This balancing test gave the government authority to regulate harmful or dangerous behavior. It also gave religious individuals an exemption from government policies that genuinely infringed on a religious practice. Conservatives are the self-styled guardians of religious liberty. What is rarely discussed is what conservatives did to the Free Exercise Clause. In 1990, the Supreme Court changed the legal standards governing that provision.
In Employment Division v. Smith, a 5-4 majority ruled that the Court should dispense with the balancing test and instead use a strict rule that if the law or regulation applies to everyone—religious and non-religious people alike—then any incidental infringement on religious liberty does not violate the Free Exercise Clause and the religious plaintiff has no recourse under the Constitution. Justice Scalia wrote the majority opinion. This ruling makes it much easier for the government to interfere with religious practices. Unless the plaintiff can show the government enacted a rule that was intended to violate or interfere with someone’s religious rituals, they have no case under the Free Exercise Clause. This dramatic holding rejected years of precedent that had favored religious plaintiffs. Recognizing that the dissenting Justices in Smith had protested that the Supreme Court was now changing the ground rules, Scalia wrote that the “compelling interest” test was never really the standard in the first place, and that the Court had only used that strict requirement when a plaintiff was bringing a hybrid claim, i.e., one that implicated both the Free Exercise Clause and the Free Speech Clause of the First Amendment. In the end, Scalia reasoned, while the standard outlined in Smith may favor the government, that is the consequence of living in a democratic society where majority rules. To say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
Of course, every Supreme Court ruling, no matter how consequential, immediately affects the people who brought the lawsuit. In Smith, the plaintiffs were two Native Americans who were fired after ingesting peyote as part of a religious ritual. Since the peyote use violated the drug laws that affected everyone in the State of Oregon, it did not matter that they were not abusing peyote or that it was a religious ritual. Under the new standard that Scalia outlined in Smith, the plaintiffs lost their case.
Church and State
At the opposite end of the Free Exercise Clause is the Establishment Clause (also part of the First Amendment), which states that the government “shall make no law respecting an establishment of religion.” The Supreme Court has long held that this Clause goes beyond prohibiting an official state religion. The government also cannot excessively entangle itself with religion, cannot advance nor inhibit religion and can only enact laws that have a religious purpose. Put another way, under the Establishment Clause, the government must respect the separation between church and state.
The Establishment Clause was implicated in a case that went to the Supreme Court in 1994, Board of Education of the Kiryas Joel Village School District v. Grumet. Kiryas Joel is a community in upstate New York, created in the 1970s to accommodate its religious residents, nearly all of whom are Hasidic Jews. As the Supreme Court noted, “It is undisputed that those who negotiated the village boundaries when applying the general village incorporation statute drew them so as to exclude all but Satmars, and that the New York Legislature was well aware that the village remained exclusively Satmar in 1989” when it created a small but separate school district for Village residents that followed the Village’s municipal boundaries.
In the Kiryas Joel case, the Supreme Court struck down the school district under the Establishment Clause, reasoning that it was intended to benefit a particular religious group and delegated governmental power to a religious electorate. This seemed an obvious decision. But the conservative Justices in dissent, including Scalia, voted to uphold the district’s constitutionality. Calling the majority decision “astounding,” Scalia employed his usual sarcasm:
“The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an ‘establish- ment’ of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause—which they designed ‘to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters’—has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.”
Freedom Of Speech
Scalia’s defenders like to point out that, in 1989, he ruled in favor of granting First Amendment speech rights to flag burners. Scalia would discuss his vote in Texas v. Johnson in speeches, noting that he had no tolerance for “scruffy” protesters who burn the flag. But even assuming the constitutional framers would have wanted the Constitution to protect flag burners, Scalia’s other free speech rulings moved away from any speech purity, suggesting he could not see the forest through the trees. In Rutan v. Republican Party of Illinois, the Court ruled that the government generally cannot hire and fire rank and file employees on the basis of their political party affiliation. The Court summarized the evidence:
“the Governor has been using the Governor’s Office to operate a political patronage system to limit state employment and beneficial employment-related decisions to those who are supported by the Republican Party. In reviewing an agency’s request that a particular applicant be approved for a particular position, the Governor’s Office has looked at whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.”
The majority in Rutan held these hiring practices violated the First Amendment because Democrats were being punished in the form of job denials because of their political opinions. In dissent, Scalia defended patronage hiring as necessary to ensure the strength of the political parties. He opened his dissent as follows:
“The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil-service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall:
‘I ain’t up on sillygisms, but I can give you some arguments that nobody can answer.
‘First, this great and glorious country was built up by political parties; second, parties can’t hold together if their workers don’t get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there’ll be hell to pay’.” (W. Riordon, Plunkitt of Tammany Hall 13, 1963.)”
It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley, and their ilk, were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt—as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history—we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by “party discipline,” before the demands of small and cohesive interest groups.
Scalia’s dissent in Rutan would throw the First Amendment into the wind. No matter how competent or experienced they are, the livelihood of an untold number of government employees would be at stake each time a new political party is swept into office. These are not abstract interests like those protecting flag burners, who are few in number. These interests would leave longtime employees without a job. Yet, while Scalia said that the practical realities of political patronage and the need to maintain strong political parties outweighs the First Amendment’s clear mandate in favor of freedom of association and expression, he voted with the majority in the notorious Citizens United case, which— consistent with an absolutist interpretation of the First Amendment—granted corporations unlimited authority to influence elections, notwithstanding the practical realities of excessive money in politics, i.e., elections that are bought and paid for by the super wealthy and create an appearance of favoritism toward moneyed interests.
The Equal Protection Clause of the Fourteenth Amendment promises equality. But what does that mean? The Supreme Court does not require absolute equality of treatment. It recognizes that government cannot function unless it can pass laws that affect some people differently. But racial discrimination is effectively outlawed under the Equal Protection Clause unless the government can prove that a compelling interest justifies the racial distinction, a difficult burden to satisfy. Government-sponsored gender discrimination is also presumed unconstitutional unless the government can prove an “exceedingly persuasive justification” for it. That legal standard surfaced in the Virginia Military Institute case, where the Court in 1996 struck down that academy’s refusal to matriculate female students. The VMI case does not get much attention today, but it was big news 20 years ago. The Institute is a military academy that opened in 1839.
While the Supreme Court noted that “the school’s impressive record in producing leaders has made admission desirable to some women [,]…Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.” That discriminatory practice ended when the Supreme Court ruled that the Constitution prohibited Virginia from excluding women from this institution. While Virginia claimed that the male-only program promoted ‘citizen-soldiers’ individuals ‘imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready… to defend their country in time of national peril,’” the Court logically concluded, “[s]urely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier ‘citizen-soldier’ corps.” The Supreme Court also ruled that the female military academy that Virginia had set up in response to this lawsuit was inferior to the VMI. Scalia dissented. One notable characteristic of Scalia’s dissenting opinions was his over-the-top rhetoric that often attacked his fellow Justices’ reasoning with indignant language. The VMI case was no different. Scalia lamented the end of an era. “Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.” Reflecting arguments that the Supreme Court had already discarded in Brown v. Board of Education (which had struck down separate-but-equal schools that favored white students), Scalia penned a lengthy dissent that defended the VMI’s refusal to admit female students, stating:
“[T]his most illiberal Court…has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.”
Looking Forward
Constitutional law is far more complicated than the media commentators suggest. The Constitution’s vague and often absolute language leaves substantial room for interpretation. Even the First Amendment, which speaks in absolute terms, does not in practice guarantee full speech rights if the government can assert some interest in social order. This means the identity of the Justices makes all the difference. Nothing in the Constitution addresses how the Justices are to interpret that document. When legal commentators talk about “original intent” (favored by conservatives) and the “living Constitution” (favored by liberals) they are shorthanding interpretative methods that have evolved over time by competing judges and scholars in attempting to push court rulings in their favor. Yet, the Constitution is silent about which method to use. It ultimately boils down to who sits on the Court and whether a Justice can gather five of nine votes in any given case. Scalia’s contribution to constitutional interpretation was to make “original intent” acceptable. Yet, this method more often than not produced conservative results that favored the government and corporations, with an occasional bone tossed to individuals who sought expanded freedoms that did not disrupt the social order, i.e., flag burners. Scalia’s approach was particularly skeptical of expanded civil rights in cases involving abortion and gay rights. As the public is not educated on how the Supreme Court interprets the Constitution, this topic is left to legal scholars and the Justices, themselves the product of a political process that has the President appoint them with the Senate’s consent. While the candidates debate trivial issues like social mores, they say very little about what kind of Justices they would appoint to the Court. Yet, the Justices pass judgment on nearly every social and legal issue that affects American life, from the corporate boardroom to the bedroom.
Led by Scalia, conservatives on the Court have held a solid 5-4 majority for over a decade, and the liberals have not consistently controlled the court in over a generation. Scalia’s death leaves the Court at a 4-4 split. His replacement will either stay the conservative course or move the Court in a new direction. The next President is also likely to appoint two and possibly three more Justices. Ruth Bader Ginsburg (a liberal) is 83 Justice Kennedy (a conservative) will be 80 this year. Justice Breyer (generally liberal) is 77.
While progressives may argue that little distance exists between the Democratic and Republican parties, that is not the case when it comes to judicial appointments. Presidents over the last 20 years have been less likely to appoint Justices who surprise everyone with contrarian views. Simply put, Democratic Presidents have been appointing reliably liberal Justices, and the Republicans have been appointing reliable conservatives.
However, even if a Democratic President appoints two or three new Justices over the next four to eight years, the presence of new Justices on the Court will not mean that cases like Citizens United, District of Columbia v. Heller (the Second Amendment gun rights case) or the Hobby Lobby ruling (exempting religious corporations from the contraceptive health care mandate) will be overturned. A new Court may chip away at those rulings, but rulings that overturn past precedents outright are rare. Whoever replaces Scalia, his legacy will outlast our lifetimes.
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Stephen Bergstein is a civil rights lawyer in upstate New York.
