What Would Scalia Do?
Antonin Scalia would hate the argument to delay filling his vacancy — here’s why.
Antonin Scalia wrote several books about law with Bryan Garner, and if you haven’t read any of them, you should.
Even if you don’t agree with anything Scalia has ever done on the Court, you should read at least one; in fact, maybe even especially then.
I am in no way an Antonin Scalia expert, so let’s get that clear up front.
However, there are three fundamental things I learned about Scalia from his writings:
- He was a letter of the law kinda guy.
- He believed fully and completely that it was the duty of the Court to uphold the law, and by extension, that it is not within the power of the Court to change the law, even when it’s wrong. (That’s the duty of the other branches.)
- Perhaps it goes without saying, but he also took his work very seriously and held the work of the Court in the highest regard.
When taken together, the legal argument for delaying an appointee to fill his vacancy simply wouldn’t hold up in front of Justice Scalia.
He was a letter of the law kinda guy
Sometimes in his opinions he made logical leaps to justify ultimately landing on the side of his ideology, sure. But part of me thinks that perhaps this is an innately human error that I would love to explore in writing — another time.
But for the most part, Scalia favored a literal interpretation of the Constitution and of laws in general, which is to say — What does the law say?
In full disclosure of my own biases, I also favor a literal interpretation of the law in many ways. Because in the end what is written in the law, well, is the law. As a linguist, though, I also know there’s another piece to meaning other than just the sentence-level content: Context.
Context is the difference between “What does the law say?” and “What does the law mean?”
Antonin Scalia also knew this. And he did consider the context of the law as it is situated within the legal text — for example, the laws within the context of their sections, and the sections in the context of their chapters.
But when it comes to the construction of meaning (which we all engage in every time we have a conversation) there is far more context at our disposal.
There’s the historical context in which the law was written, as well as the modern context to which it is being applied. And, if there is a legal rationale and sufficient evidence to do so, I have a willingness to flex the literal, textual interpretation of a law to accommodate for these macrolevel contexts. And I tend to do so more readily than, say, an Antonin Scalia.
So, though I would be hard-pressed to find legal rulings where Scalia and I would have agreed (you know, in the mystical world in which I am a Supreme Court Justice), while reading his work, I found myself agreeing with him more often than I had expected. And even in places where I didn’t agree, I often understood and respected his perspective.
He believed it is the Court’s duty to uphold the law, not to change it
The Constitution clearly stipulates in Article 2, Section 2 that it is the President’s responsibility to nominate a Justice in the event of a vacancy:
“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”
But let’s not forget the context of where this sits within the legal document itself. Article 2 of our Constitution begins this way:
“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years”
The executive powers are “vested” for a term of four years. The executive powers, then, do not expire because of an election year. They’re vested. For a term of four years.
However, it also clearly states that it is the responsibility of the Senate to provide advice and consent. But note, the Constitution does not limit the responsibility of the Senate solely to “consent.”
“Yeah, exactly! Advice could be interpretted more broadly to include the advice to delay.” Well, not quite. The topic of the text is nominating and appointing individuals to open seats within the government, so within its context, the advice and consent are about who fills the seat — not when or if.
So if we’re looking at the letter of the law, in context with the legal text, then we are to conclude that when the Supreme Court needs a Justice, the President is to first consider the advice of the Senate for who to nominate, then he is supposed to decide on a nominee. Once he has decided on a nominee, it is the Senate’s responsibility to wrestle with the merits of providing final consent — again, consent about who, not when or if.
And Justice Scalia would posit that it is our responsibility to uphold the law as it is written — not to change it, even when it doesn’t suit our desires.
He held the work of the Court in very high regard
So here’s a question — if the legislative and executive branches have a legal dispute, particularly one about the Constitution, who is to settle it?
“Duh, the Supreme Court.”
Yeah, but what if the Supreme Court is rendered useless because the very thing in dispute is making the Court whole again? Then what?
And I think this is the most salient point. Antonin Scalia, above all else, regarded the work of the Court to be vital to our nation, to our democracy, and to the integrity of our Constitution. And in this, I certainly agree.
The framers of our Constitution anticipated heated, politically-motivated disagreements between the executive and legislative branches, so they designed a system that relied on checks and balances spread across three branches so as to not end up in deadlock.
Particularly in this time of hyper-partisanship in which the executive and legislative branches can’t seem to come together on damn near anything, we need the Supreme Court to be whole.
Not only does leaving Justice Scalia’s seat vacant fail a strict interpretation of the Constitution, but it also fails interpretations based on the historical context for why the law was written, as well as the modern context to which it is being applied.
So even Justice Scalia would agree that leaving his seat vacant is nothing more than interpretive jiggery-pokery.