All Your Questions About Scalia and the Fate of the Supreme Court, Answered

In a special Dear Jurisprudence column, Slate’s legal eagles answer your questions about the court, the big nominating fight, and more.

Scalia questions.
Justice Antonin Scalia, May 20, 2010, on Capitol Hill in Washington, D.C.

Chip Somodevilla/Getty Images

On Thursday, we asked you to send us your most pressing questions about the Supreme Court, Justice Antonin Scalia, and the political fight that has erupted in the wake of his death. And, wow, did you ever. Here are our answers. (Note that this transcript has been lightly edited.)

What do you think Justice Antonin Scalia’s legacy will be?

Dahlia Lithwick: Justice Scalia’s legacy will be that he gave force and passionate expression to the idea that judicial restraint requires judges to interpret the Constitution and statutes in ways that are neutral and nonpolitical. He used the tools of textualism and originalism and made it cool for judges to consider what dictionaries say, and what history demands. So forceful were his arguments about this methodology that even the court’s liberal wing came to borrow from this tool kit. Scholars will debate whether he was truly faithful to this project, or whether he used this methodology selectively to reach political outcomes he favored. But I don’t imagine anyone would dispute that he changed the way we approach the task of interpreting the law.

It’s also worth recalling that in some instances the same approach brought him to what we would consider liberal outcomes—for instance, in Confrontation Clause and search cases. But it’s also fair to say that his rejection of the idea that the Constitution can evolve means that women, LGBTQ, death row inmates, and many other groups did not fare well in his worldview.

Is there anything that Obama or the Democrats in the Senate can do to force a vote on a Supreme Court nominee?

Lithwick: Not really. You can’t force the judiciary committee to hold a hearing, and they have the right to “advise and consent,” so it’s a pickle. The best the president can do is public shame them about mass obstruction. Interestingly, that seems to be working, at least partially, if you consider some of the de-escalation we have seen in recent days.

What is the chance of a Grand Bargain, whereby Ruth Bader Ginsburg agrees to retire, and President Obama and Senate leaders agree on two nominees?

Mark Joseph Stern: I strongly doubt this would happen, for two reasons. First, RBG is not going to resign for nakedly political reasons. Second, I don’t think Senate Republicans are willing to agree to a liberal replacement for any justice, let alone one who seems very likely to retire during the next president’s term.

What would Scalia say about replacing Scalia? Would he buy the GOP’s populist “let the people decide” argument?

Lithwick: I’m glad you asked this! It gives me a chance to share something reader Neil Lloyd sent me the other day. Scalia was actually pretty clear that he thought lengthy periods of 4–4 gridlock at the court would be terribly damaging. Here he is in Cheney v. United States District Court for the District of Columbia, 541 U.S. 913, 915 (2004):

Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” … That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.

When I look at what an Obama nominee would go through to be confirmed today in the Senate, I can’t help but wonder why the most qualified candidates wouldn’t just say, “No, thanks.” It seems like it would be excruciating to be the object of the type of obstruction the Senate Republicans are promising. Could this mean several excellent potential justices will simply not be available?

Lithwick: You are surely correct. I have met more than one person who has said they would never put themselves or their families through a confirmation hearing—and that was back in the days when they simply called you names and insulted your intelligence. This upcoming nomination fight will be pure carnage, and for a lot of people on the shortlists—who, by the way, are at the apex of extraordinary careers and in their late 40s or early 50s—this would not only be a yearlong bloodletting, but possibly very damaging to a career as well as a life. Personally, I would rather poke my eyes out with a shrimp fork. But some of these people are also extraordinary public servants who may be willing to do this if their president asked it of them.

Could Obama nominate himself without resigning the presidency?

Stern: No, because this would undoubtedly violate the basic principles of separation of powers. Also, he would have to recuse himself from any case involving the executive branch. That’s a lot of cases!

What does the future hold if the president cannot get his choice approved and a Democrat is elected as the next president? Could the selection of a new justice get stonewalled for years? Scary thought.

Lithwick: You should read Isaac Chotiner’s incredibly dispiriting interview Thursday with Norm Ornstein about growing tribalism and paralysis. It’s certainly possible that this gets worse, yes.

Let’s assume for a second that President Obama has a decent shot at getting a nominee through. How would the court’s “median” vote change with a new justice? Would that vote still be Justice Anthony Kennedy?

Stern: If Obama does get a nominee through, the median vote will probably be either the new justice or Justice Stephen Breyer, the most moderate of the liberals. Kennedy will sit more firmly on the (diminished) right wing of the court.

I’ve read conflicting things about the votes Scalia cast or opinions he wrote during this term, and what happens to those after his death. Can you please clarify?

Lithwick: The rule is that his vote only counts as opinions come down, because straw polls are straw polls and votes change as the drafting process bumps along. So even if Justice Scalia had signed on to something, I think it’s not going to count. I was asked about opinions on their way to the printer when he died, and I confess I would hope that at that point it would count, but I am not sure on that score. Someone know?

Stern: My understanding is that an opinion is not final and official until it has been handed down. There are stories of justices changing their votes the morning a decision was announced. So those opinions on the way to the printer will still need to be revisited.

Lithwick: And yet if there was ever a jurist unlikely to change his opinion on the morning of a hand down I suspect we know who it was …

If a new justice is miraculously, speedily confirmed, will he or she be able to take sides on cases that justice wasn’t a part of originally? Will the cases need to be re-argued?

Stern: They will need to be re-argued. Tradition dictates that justices only vote in cases that were argued while they were on the court. (Not literally, though: During his ailing final years, Justice William Rehnquist voted in many cases for which he was absent during oral arguments. He listened to recordings.)

Antonin Scalia: Order Muppet or chaos Muppet?

Lithwick: Well, you just made my week. But I feel that you know the answer to this question already, don’t you? Don’t you? Mahna mahna.

Scalia was considered by many to be the court’s best writer. Who takes that title now? No applesauce, please.

Stern: No question in my mind: Elena Kagan. She has already joined the ranks of the court’s truly great writers, along with Scalia and Justice Robert Jackson. Her one flaw is that she occasionally tends toward the cutesy—see her famous fish dissent. But she is already one of the most trenchant, clever, and readable justices in SCOTUS history.

What will happen to Scalia’s law clerks?

Stern: There is not, to my knowledge, any official protocol here, but they will probably take care of whatever unfinished business they can, then find another job. (It will be a very good job.) In the past, the law clerks of justices who died or retired have stayed on to help the replacement justice with the transition. But since it seems there won’t be a replacement justice for a while, that is unlikely.

Is there any chance that Supreme Court term limits will come up in this current debate?

Lithwick: I think a LOT of people are having a sober second look at term limits, precisely because the framers can’t really have wanted the nation jolted into a constitutional crisis every time a justice died on the bench. It’s also not helping the national blood pressure around the issue that one member of this court will be 78 by the time of the November election and another will be turning 80. One will be 83. There is a good bit of chatter right now about how term limits might resolve some of this. See also http://fixthecourt.com, where they are rallying around the issue.

In writing about the fight over Scalia’s replacement, Ross Douthat pointed out that conservatives don’t trust moderates because they perceive GOP-appointed Supreme Court justices as often drifting left, while Dem-appointed justices stay rock-solid liberals. Any thoughts on that?

Lithwick: I wrote about this just before Scalia’s death: There actually is pretty good empirical evidence that conservatives drift left more than liberals drift right. I even looked at some of the hypotheses for why that might happen. I guess the cure for this is to find justices like Justice Thomas who promised he wouldn’t drift. (And hasn’t.)

What would happen if the Supreme Court were called upon to determine whether Ted Cruz is eligible to become president (is he “natural born” or not)? Would a lower court’s ruling settle the case if there was a 4–4 tie?

Lithwick: Yes, if it were tied 4­–4, the lower court ruling would control.

What happens with the 5–4 decision to stay the Clean Power Plan?

Stern: The initial 5–4 decision merely granted a preliminary injunction, blocking the plan until the D.C. Circuit ruled on it. The D.C. Circuit, which is stacked with Obama appointees, will almost certainly uphold the plan. At that point, conservatives will once again appeal to SCOTUS for an injunction, pending Supreme Court review. And at that point, the justices will probably split 4–4. A tied vote will allow the plan to go into action. And if the court splits 4–4 on the merits, the plan survives.

Is there any merit to the strategy of nominating someone too extreme to get confirmed and then trying another candidate? I’m thinking about how Harriet Miers was nominated and rejected, but then Bush managed to get Samuel Alito to replace Sandra Day O’Connor, even though he was clearly a rightward turn. Maybe Obama should start with Loretta Lynch?

Lithwick: Don’t forget that the Miers nomination was not scuttled by objections from the left, but from the right, where the fear was she wouldn’t be sufficiently conservative. The problem here is that until and unless the rhetoric changes, even someone moderate won’t get a hearing.

The Third Amendment bans the quartering of troops. Accordingly, the implication is that without the Third Amendment, the federal government at the time of passage of the Bill of Rights would have had authority to do so. Where would that authority be found in the body of the Constitution?*

Stern: I love this question, which has nothing to do with Scalia or the appointment process but is still a fantastically fun puzzle. Some background: The Bill of Rights bound only Congress, not the states, until the passage of the 14th Amendment. States have vast police power; Congress doesn’t—its exercise of police power requires some constitutional hook. (Today, that’s often the Interstate Commerce Clause and/or the Necessary and Proper Clause.) So your question is: Why would the Third Amendment prohibit something that Congress wouldn’t seem empowered to do, anyway? I think the answer has to do with the politics of the Bill of Rights, which was promised because it appeared the Constitution wouldn’t be ratified without it. So we can think of the Third Amendment as an overcautious sop to the anti-federalists—a way of saying, no, seriously, we SWEAR we won’t do this.

See more of Slate’s coverage of Antonin Scalia.

*Update, Feb. 19, 2016: A portion of the final question was deleted after publication, because it wasn’t relevant to the final response.