The fact that Justice Scalia passed away over the weekend from natural causes is, of course, all over the news. There are any number of articles speculating on how nominating a successor would affect the coming presidential election; who are the potential nominees; how this changes the ideological make-up of the Court, and so one. All are worthy questions for speculation. I’d like to highlight what this event means for coming decisions. The Court has had a certain stability despite the two appointments resulting in the confirmation of Justices Sotomayor and Kagan. As a side note on that, check out the CNN story by David Axelrod where Justice Scalia quietly expressed a preference for Elena Kagan to replace Justice Souter. He got his wish when Justice Stevens retired.
Court watchers were always interested in Justice Scalia’s questions in oral argument given the Court’s ideological split, mostly 4-4 with Justice Kennedy in the middle. While he was identified as a conservative, he didn’t always side with a conservative point of view. I remember that he was fairly protective of the Fourth Amendment (See U.S. v. Jones, 132 S. Ct. 945 (2012) as an example) when the trend in Federal Courts seemed to find plenty of exceptions in its prohibitions). Justice Scalia’s questions were as much a clue to his influence on the resulting decision as it was a bit of theater. He certainly seemed to enjoy the intellectual banter with those presenting arguments. CNN has another article listing six cases the site highlights as more significant cases than others. How the Court will handle these and other issues will send Court watchers back to re-analyze the arguments.
The cases that concerns me is the potential appeal of the Google Books case and the Apple antitrust case, both affirmed by the Second Circuit. The Authors Guild has filed a petition for cert which is pending. Apple has yet to file its petition but has indicated that it intends to do so. Justice Scalia will not be a participant in the case whether the Court accepts the cases or hears them. These cases may stand if the Court splits 4-4 on the issues. If it makes any difference, Justice Scalia joined Justice Ginsburg’s dissent in the Kirtsaeng v. John Wiley & Sons, Inc. first sale doctrine case.
I have a minor personal story about Justice Scalia. He came to DePaul several years ago and spoke to the faculty in our Rare Book Room. Security was exceptionally tight. I believe it was the first time ever I had to show multiple IDs just to get into the building. I was sitting at the Reference Desk when the Justice was shuttled up to his engagement via the service elevator. That was less than 100 feet from where I was sitting. That is effectively the closest I will likely get to a member of the Court. It was amusing to have security watch me while I answered the occasional reference question.
I have written pointed things about Justice Scalia in the past. I’ll remember him as the Justice who rejected legislative history in all possible forms as a vehicle for interpreting statutes. He did not join all of Justice Ginsburg’s dissent in Kirtsaeng. He skipped every section that mentioned legislative history, even if appearing only in a footnote. His attention to original intent had him questioning whether the King could hide a sentry in a coach as an analogy to whether the government could place a tracker on a defendant’s car in some circumstances. That’s from the Jones case mentioned above.
Goodbye Justice Scalia. You were larger than life on the Court. While you will be replaced, there will never be a Justice exactly like you.