The Empty Bench: On Justice Scalia’s Longstanding Legacy

This article was excerpted from articles published by the Claremont Journal of Law and Public Policy. The full articles can be read at

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”

This quotation by Former Justice Antonin Scalia encapsulates his self-perceived role on the bench of the US Supreme Court and his actions as a Justice. President Obama will likely try to fill the vacancy with a more liberal justice in the coming months. In this article, we will discuss Scalia's life, one of his potential replacements, and how his absence from the Court will affect two of the highest profile cases on the docket this year.

After a few years practicing in Cleveland, Ohio, Scalia returned to academia to teach at the University of Virginia Law School; for all of his perceived flaws, Scalia truly loved to teach, and he did so at several law schools. As a justice, Scalia wrote strong opinions, using his trademark, shall we say, inventive, language, like “jiggery-pokery” and “pure applesauce,” to both disagree with and poke fun at those arguments he believed did not follow a classical interpretation of the Constitution.

Scalia was often offensive, but the mark he has made on the American political and legal system is hugely significant. His relentless challenges to those he both agreed with and opposed have inarguably influenced the Court, and his firebrand style and extraordinary intellect allowed his modern pioneering of originalism. Scalia’s friendship with Justice Ruth Bader Ginsburg was another notable part of his justiceship; the two disagreed politically but were able to use these disagreements to make each other more thoughtful. We should learn from this: we can use disagreement as an opportunity to educate each other and share our perspectives.

Scalia’s death has sent the United States political scene into a frenzy, with public figures in each major party hurrying to posture in ways that they think will leave their party in a better position for the 2016 election as well as help it control the Court. Senate Republicans and presidential hopefuls claim that Obama should not even nominate a Justice in his final year, instead leaving the responsibility to his successor. Obama has vowed to “fulfill [his] Constitutional duties” and nominate Scalia’s replacement.

The most prominent choice is Sri Srinivasan, who would be the first Indian-American to serve on the high court. Mr. Srinivasan is an accomplished Supreme Court attorney who graduated from Stanford Law School before clerking for Judge Harvie Wilkinson III and then for Justice Sandra Day O’Connor of the Supreme Court, a Reagan appointee. He currently serves on the D.C. Circuit Court and previously served as Principal Deputy Solicitor General. He was the expected replacement for Ruth Bader Ginsburg, had she retired during Obama’s second term.

Srinivasan is considered a moderate and, although young, was unanimously (97-0) confirmed by the Senate to the D.C. Circuit Court. This would make it particularly hard for Senate Republicans to deny him a vote or to turn him down without making it crystal clear that they are keeping a Supreme Court seat vacant for political reasons. In contrast to more liberal judges, Srinivasan has emphasized the importance of stability in law. Still, Obama, who is looking to protect and expand his legacy, would be happy to see Srinivasan on the Supreme Court.

Every term, the Supreme Court’s docket contains cases that have the potential to redefine the American political landscape. Oftentimes, these cases are resolved by a Court split 5-4: four conservative justices on one side, four liberal justices on one side, and Justice Kennedy in the middle. Regardless of when a ninth justice will be confirmed, Scalia’s death may impact several controversial cases this term. For example, the four conservative justices, along with Kennedy, were expected to rule against public-sector unions in the case Friedrichs v. California Teachers Association, undermining their ability to advocate for public-sector employees.

Without Scalia, the Court is likely to deadlock at 4-4, upholding the lower court’s ruling in favor of unions. By contrast, Scalia’s death will likely not affect the Court’s decision in Fisher v. University of Texas. More commonly referred to as “The Affirmative Action Case,” Fisher is a constitutional challenge to affirmative action practices at public universities. Abigail Fisher, a young white woman, sued the University of Texas after she had been denied admission, alleging that she had been denied admission because the University’s use of race as a criterion for consideration in its admissions process, which she argues unconstitutionally discriminated against her on the basis of her race. Although Scalia was expected to vote to strike down the University’s affirmative action program, his passing will likely have little impact on how the Court ultimately resolves this case. First, Justice Kagan, who would have likely voted to uphold the University’s affirmative action program, recused herself and will not affect the Court’s final decision. Furthermore, Kennedy and the three remaining conservative justices are expected to vote in favor of Fisher. As such, Scalia’s death leaves four likely votes to strike down the University’s affirmative action program against three to uphold. Even after Scalia’s passing, affirmative action is still very much on the ropes.

Scalia believed in and enforced the Constitution as an embalmed and unchangeable document. He asserted that the Constitution was not a “tool for change” but existed to make change more difficult. While many disagree with his decisions and many of his statements, his influence on the Court over the last 30 years cannot be ignored. That influence is sure to be felt for decades, if not centuries, beyond the Justice’s death.

Calla Cameron CM '17 is a history major specializing in international law and Latin America, Martin Sicilian PO '17 is an economics major and editor-in-chief of the Claremont Journal of Law and Public Policy, and Jerry Yan PO '18 majors in politics.

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