Justice Antonin Scalia

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With the death of Supreme Court Justice Antonin Scalia, Arizona State University law professor Erik Luna discusses his legacy and the ramifications on politics and the court.

Jose Cardenas: Good evening. I'm Jose Cardenas. We'll talk about the passing of Justice Antonin Scalia and what's next for the U.S. Supreme Court. And is it just a word? A discussion about the controversy that surrounded the N-word controversy at Desert Vista High School. Plus, an event to celebrate entrepreneurs in Arizona. We'll talk to a film director about how he started in the filmmaking business. All this coming up on "Horizonte."

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

Jose Cardenas: The death of Justice Antonin Scalia not only complicates the upcoming Supreme Court term, but it also impacts the political landscape. Joining us now to help us understand what is next is ASU law professor Erik Luna. Professor Luna, welcome to "Horizonte." You know, it's almost sad that we spent so little time talking about his impact on the court, regardless of what your political persuasion and immediately started bickering about how we're going to replace him.

Erik Luna: It's unfortunate because his legacy is truly a great one, whatever political persuasion you may have. Certainly he was often associated in his decisions with positions that would be deemed conservative politically but he on more than one occasion surprised folks, given his particular interpretation of the Constitution, his methodology for statutory interpretation, his loss will be significant for the court and for the legal profession.

Jose Cardenas: And one of those areas of surprise would be First Amendment decisions where he took what some would regard as a liberal position.

Erik Luna: One particular case that he's well known for and would like to point out when people discussed how politically oriented the court had become, he voted with the majority in striking down a flag burning statute and it was -- he did not want to do that, he said publicly that that was against his feelings about those individuals who would actually go about burning a flag and yet he knew that the First Amendment pushed him to that decision.

Jose Cardenas: Justice Stevens was on the other side of that. The fact is that it has devolved into a lot of discussion about replacing him. And I guess a couple of the ironies are the political polarization that we see, he manifested some of that in his opinions, particularly earlier in his career where he would write some stinging dissents that included a lot of personal insults about his colleagues.

Erik Luna: He certainly was not above using let's say colorful language and there is some thought among those who are court watchers that his relationship with justice O'Connor may have soured because of some of those offenses but that's also where to some, to those who followed Justice Scalia and to some extent he was almost like a rock star among conservative legal scholars and attorneys, that was what made Scalia, Scalia. Those who obviously didn't agree with him on those positions saw it in a different light.

Jose Cardenas: Also, some speculation that perhaps because of his style, it cost him the opportunity to become Chief Justice.

Erik Luna: That's one very good point, as well as unlike some of his predecessors, he was not a coalition builder. He would state what his position was through his particular lens, he was as the media has pointed out, he was an originalist and indeed he was the original originalist in terms of Supreme Court interpretation, and so he was not willing, at least until later on in his career, to compromise on positions and that probably left him more often than he would like in concurrences and dissents.

Jose Cardenas: Speaking of the originalist position, some have pointed out that on this current debate between Republicans and Democrats he probably would be siding with President Obama about whether the Constitution permits or doesn't permit him to name a successor.

Erik Luna: I think it's right. I think he would look at the text, the background, the president has the right to make the nomination and, of course, the Senate has the right to give or withhold their consent. Both Justice Scalia and the court undoubtedly would stay out of this if it ever became a controversy. And trying to fill Justice Scalia's very large shoes, it is a political controversy and probably not a legal one.

Jose Cardenas: So I want to talk a little bit about the politics of it but the impact on the court of not appointing somebody. Somebody is not going to be appointed in time to participate in some of the oral arguments that are coming up no matter what. But a court that's split fairly evenly, what's going to happen with some of the important cases that are scheduled for argument?

Erik Luna: All those cases that you might have foreseen being 5-4 with Justice Scalia in the majority, those as a matter of force are going to be 4-4 decisions or they will be scheduled for re-argument in the next term. Either way, it's likely to change the landscape for some pretty important issues that are up before the Supreme Court, whether it's affirmative action, whether it's abortion, whether it's redistricting, whether it is President Obama's executive action with regards to immigration, all of those issues could have been tightly divided cases and decisions where Justice Scalia in the majority would have tipped it in favor of one position rather than the other. Those may end up again 4-4, which would lead to affirming the lower court decision whatever it was or the Supreme Court simply punting it down the road.

Jose Cardenas: A 4-4 vote is just a temporary victory for whoever won in the court below because it can still come up and a full court could decide it differently?

Erik Luna: The Supreme Court has a tenacious ability to take cases when they want to hear them so even if they were to decide that this case -- this is a 4-4 decision, reaffirming whatever the lower court decision is, they could take it at a later point.

Jose Cardenas: Any sense as to whether they're more likely on the pressing cases, for example, the immigration one that is before them on the president's use of executive action, any sense for whether they'll go the 4-4 route or just reschedule for oral argument?

Erik Luna: That would be reading the tea leaves and I don't know what the answer is. I think it really will come down to, is there some room with the eight remaining justices to come to some conclusions with regards to those otherwise, highly divided cases. If not it may well get punted down the road or in the case of the president's immigration decision, we'll just simply keep the status quo as it is right now.

Jose Cardenas: Let's talk quickly in the time we have left about the process of nominating a successor. The president says he's going to do that, Republicans initially said no way we're not going to even consider any nominees. They seem to be backing off a little bit. Senator Grassley has said he'll wait until he sees who the president nominates.

Erik Luna: I expect there's some back channeling between the White House and the key senators, those who are on the judiciary committee or have particularly important voice in these types of issues about the notion of presenting something of a moderate type of candidate, someone who could placate both the left and the right at least in the short term. Undoubtedly they'll be looking to several judges that are currently on what is essentially the triple a team for the Supreme Court, the D.C. circuit, and some of them could be some groundbreaking potential candidates, the first Indian American to be on the Supreme Court, and he received -- he was confirmed unanimously in a 97-0 vote. There will be other candidates as well that will be discussed, and then almost like an unexpected Christmas we'll hear the decision undoubtedly in a couple of weeks.

Jose Cardenas: So I saw a posting on the Huffington Post, a blog, somebody suggesting that our own Diane Humetewa confirmed as a district court judge about a year or so ago would be perhaps the ideal choice for Obama or at least would really test the Republican resolve not to allow Obama to make an appointment.

Erik Luna: She would be a strong candidate. As a Republican, she would be someone who could bridge that gap in this kind of precarious nomination situation. She's a district court judge. We don't in recent memory have a district court judge all the way to the Supreme Court, but she would be a unique candidate, incredibly well qualified, and would be a first, the first Native American member of the Supreme Court. So all bets are possibilities in this round.

Jose Cardenas: There's a lot to look forward to. We'll see what develops. Thank you so much for joining us on "Horizonte" to talk about it.

Erik Luna: Thank you.

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Erik Luna: Arizona State University Law Professor

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