Justice Scalia

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Supreme Court Justice Antonin Scalia died suddenly over the weekend. Arizona State University law professor Paul Bender will talk about the implications on the court and about Scalia’s legacy as a justice.

Ted Simons: Coming up next on "Arizona Horizon," thoughts on the passing of Justice Antonin Scalia and what comes next for the U.S. Supreme Court.

Ted Simons: Also tonight, we'll switch gears and get an update on the valley's commercial real estate conditions. Those stories next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the Friends of Arizona PBS, members of your PBS station. Thank you.

Ted Simons: Good evening and welcome to "Arizona Horizon," I'm Ted Simons. The death of U.S. Supreme Court justice Antonin Scalia on Saturday came as a shock to the country, to the court, and to those who knew and worked with Justice Scalia. Former Supreme Court justice Sandra Day O'Connor, who served with Scalia, released a statement today, stating, quote, "I am deeply saddened to learn of the passing of my dear friend and colleague, Justice Antonin Scalia. Nino was a tireless public servant who left an indelible mark on the court and on our jurisprudence. His gifts of wisdom, wit, and wordsmithing were unparalleled, and he will be sorely missed." That sentiment was shared today by Arizona Supreme Court justice Clint Bolick, who tried a number of cases before Scalia and the high court.

Clint Bolick: I had the great privilege of arguing before Justice Scalia, which is definitely an intimidating exercise, and meeting him on multiple occasions as well and considered myself a groupie, as well. Any time I could see him speak, I took advantage of the opportunity. He had a huge impact on issues touching every American, from free speech to private property rights to federalism to social issues and criminal issues, as well. But I would say his greatest contribution was articulating the philosophy of the original intent of the Constitution. The Constitution as a contract, where the duty of the judge is to interpret it according to its plain meaning and not what the judge wishes the meaning was. He's an incredible giant. He's an incredible man. And his departure from the court will have a seismic impact on our nation.

Ted Simons: Scalia's cause of death has been ruled a heart attack, he was 79, and had been on the court for close to 30 years. His passing set up a major political fight to replace him, and leaves many questions about upcoming Supreme Court cases and how the death of a sitting justice will impact how the high court does business. Joining us now is ASU law professor Paul Bender. Good to see you, thanks for being here. The impact of Antonin Scalia on the U.S. Supreme Court.

Paul Bender: Not nearly as great as people are saying. It's very hard to think of an area of the law, except perhaps the confrontation clause of the Constitution which most people don't know anything about in which he had a big impact on decisions. He was a dissenter, he wanted to overrule minimum wage, he disagreed with fundamental doctrines of constitutional law, and he lost in most of those cases. So it's very hard to think of an opinion or decision during Scalia's tenure which he really influenced, except for his vote which will be part of the law in the future. In fact, it's hard to think of any that are part of the law today.

Ted Simons: What about the definition of the second amendment and the right of the individual to bear arms?

Paul Bender: Not only his view that was not a big thing for him. That issue. But he was in the majority but even there he wrote a 5-4 majority opinion which was not nearly as broadly protective of gun rights as he would have wanted to write but he needed five votes and the fifth vote was Justice Kennedy and I don't think Kennedy was willing to do that. So if you read the Heller case carefully, it leaves enormous room for gun regulation.

Ted Simons: As far as intellectual impact on the court, known mostly for writing dissenting opinions, lots of folks say they were very well written, almost artful, also could be downright nasty to the case and his fellow justices but just the whole intellectual impact?

Paul Bender: He had a very interesting find. His opinions are much more interesting to read than anybody else's on the current court. And he did insult his colleagues. Almost always. It's hard to think of a dissent of his that doesn't insult somebody. I don't think they took it personally. It was just the way he did things. He had very colorful language and very interesting ideas, most of which are way out of the main stream of American constitutional law.

Ted Simons: Big on originalism in constitutional law, big on textualism and interpreting statutes. What do those things mean?

Paul Bender: Both of those are very controversial. Originalism means as Clint Bolick just said doing what the people who framed the Constitution would have done at that time with the issue. That is a theory that just does not make sense. Do you think brown and board of correction was correctly decided?

Ted Simons: Yes.

Paul Bender: Well, if you believe in originalism, it was not correctly decided. The people who drafted the 14th amendment excepted racially segregated schools. Do you think it's unconstitutional to prohibit women from being lawyers?

Ted Simons: But I thought that was more of a Bork avenue as opposed to Scalia.

Paul Bender: Both of them.

Ted Simons: You're saying he was on the same side?

Paul Bender: Bork in some ways was Scalia's mentor. Yeah. They both shared that view. Go back to the segregation. The Supreme Court in 1870, 1880 decided no one disagreed that a state could bar women from being lawyers, because the framers of the 14th amendment didn't think that the 14th amendment prohibited that kind of sexual discrimination. Now, if you're an originalist and you really mean it, you would have to stick by that but nobody wants to stick by that.

Ted Simons: Can you be an originalist and also, a textualist, which apparently, he was and find in the text things that would get around those kinds of issues?

Paul Bender: No. If you're an originalist, you do what the originators of the language thought it meant. Even if the text might say something different. That's what originalism means. Textualism, yeah, can be quite different. You look at the text and you can get almost anything out of it. Scalia was controversial because he said only look at the text, don't pay any attention to legislative history, for example. And that's a controversial point. Again, that was his view, I don't know that anybody else on the Supreme Court, maybe justice Thomas, shared that, that you don't care about the context of the statute, you don't care for the reasons why it was passed, you don't care for its place in history. That doesn't make any sense, either. Words should not be viewed in a vacuum so those are two main threads of his jurisprudence but they just don't hold any water and they're not going to be part of American constitutional law in the future.

Ted Simons: You say that and yet he inspired a generation of conservative lawyers. They're out there everywhere and they believe in these things, as well. I mean, it didn't seem like we heard much about original intent at all until -- obviously --

Paul Bender: For good reason.

Ted Simons: It didn't seem like we heard that until the last generation or so. Now, even the liberal justices are bringing it up.

Paul Bender: I don't know about the liberal justices, they shouldn't. Bork started that I think and that was one of the main reasons Bork didn't get confirmed because he stuck by his originalism so in Connecticut, that said married people had a constitutional right to use contraceptives and Bork thought decision was wrong. And I think he was probably right, certainly right, that the people who drafted the 14th amendment did not think that they were saying that states could not prohibit contraceptives. They were not saying the states could not prohibit abortions. So if you stick by originalism, you come out with some results that most people, almost all people, will not accept today. And Bork and Scalia were the only two people I know, maybe Ted Cruz, who really stick to that. Now, it's true they did inspire and continue to inspire a lot of younger lawyers and judges and that's -- I mean, that's a strain of constitutional interpretation and approach but it's never been the majority, it was rejected during Scalia's tenure on the court repeatedly, even though he was an enormously able advocate for that kind of stuff. And so there's nobody left on the court except maybe Clarence Thomas, who really believes in that. And even he doesn't believe in that the way Scalia did. So it's interesting, it was very provocative. He's a very, very interesting mind. A lot of good ideas. A lot of ideas, a lot of ideas worth talking about but not really a major impact on the law itself.

Ted Simons: That's interesting. Now, as far as the court currently, 4-4. What happens? What's next?

Paul Bender: Well, if a case is 4-4, which it can be, with only eight justices, then that will be affirmed by an equally divided court. If the court hears argument and split 4-4 or have already heard argument and they split 4-4 and they want to decide the case, it would be affirmed by an equally divided court. The lower decision will stand. They don't have to do that. The one thing they can do and have done in the past when these things have arisen is to set the case down for reargument so that a case that they've just heard, for example, that maybe was 5-4, and now is 4-4 because he left, he cannot participate in any cases from now on. Even if he voted in them, even if he wrote the opinion, he might have written the majority opinion two days ago that was going to come down today, it will not come down under his name. You can't do that. The Supreme Court is very stern about that. So if it's 4-4, then the court could say we really want this to be decided by a full court and they can ask to have it reargued next year. There's a problem with that now because which is next year? When is the court going to have a full complement? If the Senate persists in not paying any attention to Obama's nominations and even if they paid attention they're going to reject them, so there wouldn't be an appointment until late January. Well, it takes two or three months in the best of times for an appointment to be confirmed. So that's next March or April, there won't be nine justices for almost all of next term, either. So fundraiser going to set it out for reargument, you may be setting it out for reargument two years in the future. The court is going to be reluctant to do that.

Ted Simons: It sounds like the court -- in a sense the courts of appeals would become little Supreme Courts.

Paul Bender: That's always true when they deny cert, 4-4. The court has a big problem. This is unusual that somebody dies suddenly in the middle of a term who's somebody like Scalia who writes a lot of opinions, what are they going to do with them?

Ted Simons: There are critics out there who say the president should wait until the election, that a liberal replacing a conservative icon is simply wrong and that you would have to wait for a democratic vote for the presidency, the next president choose. Who knows what happens then, but because of the nature of his standing, Scalia's standing, you can't just have a democratic governor put in a liberal.

Paul Bender: Democratic president. Well, you can. I mean, I think Obama has to nominate somebody. But the Senate does not have to confirm him and I would certainly understand if the conservative Senate would not want to confirm somebody who Obama would nominate and I can understand that Obama would not want to nominate somebody that the conservative Senate would want to confirm so the chances are very, very great that you're not going to see a replacement until there's a new president. This is a new problem. This did not happen 100 years ago. The court today is split along partisan, political lines. The court themselves are not party partisans, but the parties think they are and the parties are so split in a way they never have been as far as I know before, political party lines, so that you get things like we can't let the Democrats put -- we have to have a Republican! We have to have a Republican! That's not the way it's supposed to work. You're supposed to pick somebody who's highly qualified and acceptable to a brought range of people. These days there's almost anybody who's acceptable to a broad range of people. That's a big problem with our system.

Ted Simons: Is that among -- I'm trying to get the legacy now of Antonin Scalia. I've actually -- we know it's a Kennedy court, pragmatically speaking. But I've heard that because of the conservative nature of the court and what we've had in the past, I've read people said at its base it was a Scalia court.

Paul Bender: No.

Ted Simons: You disagree.

Paul Bender: Scalia came on the court wanting to lead a revolution, to reverse the warren court's jurisprudence of expansion of individual rights. That's what he wanted to do. He didn't do it. He never got the votes to do it. That would have been his legacy but it didn't happen. And, in fact, his legacy is it was rejected, forcefully rejected as in the same-sex marriage. Scalia wanted to get rid of substantive due process, which is responsible for the cases and other cases like that, he tried as hard as he could to do that and I don't think he really ever had three other votes but he certainly never had four other votes. Before we leave that, there is one option that president formally has which I don't think he's going to take or should take, which is to make a recess appointment.

Ted Simons: That's not going to happen.

Paul Bender: He could make a recess appointment today who could sit on the court tomorrow, because he can do it all by himself. I don't think that's a good idea for lots of different reasons. But it's happened in the past. But it hasn't happened in a past like that where the things are so politically charged. So I can't imagine that he would do that. I don't think he should do that.

Ted Simons: All right, Paul good to have you here, thanks for joining us.

Paul Bender: Nice to be here, Ted.

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Paul Bender:ASU Law Professor

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