US Supreme Court Justice Antonin Scalia, who passed away on Saturday at 79, had many enemies — overwhelmingly across the liberal spectrum and not too few among conservatives either, whom he bequeathed several rallying cries in an America unrecognisable today from 1986, when he was nominated by Ronald Reagan. Justice Scalia, with his acerbic wit, stood on what commonsense today would deem the wrong side of history, be it gay rights, abortion, affirmative actionl. Yet, in reading the constitution and defining the conservative line — often as the voice of dissent in a conservative-majority Scotus — Scalia’s legacy is colossal.
Scalia’s intellectual impact on American jurisprudence parallels the shaping of conservative thought by William F. Buckley Jr in the second half of the last century. In his absence, the court may be split four-four in contentious cases, legally invalidating its judgment. But nominating that verdict-clinching ninth member may prove impossible for President Barack Obama as the Republican-majority Senate will be under pressure to delay till a new president assumes office. Even if the Republicans filibuster a liberal nominee — incidentally, Indian-American Sri Srinivasan is a likely candidate — the Democrats aren’t in a position, unlike in 2013, to use a simple majority to overturn Senate rules overnight to stop filibusters of judicial nominees.
The 2016 presidential election and Scotus’s future character are now intricately tied. In a country where the right is seen as the defender of absolute freedom of speech against the left that would like to re-interpret the First Amendment to institutionalise curbs on it, Scalia’s “originalist” position — which sees constitutional meaning as immutable and whereby he defended protesters’ right to burn the American flag even as he made his distaste for them clear — has proved untenable under liberal progressivism and conservative pragmatism. Yet, his scepticism about “nine unelected lawyers”, his definition of Scotus, reviewing decisions reached by democratic process is perhaps his biggest legacy.
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