4 Questions With NPR's Nina Totenberg About Justice Antonin Scalia

Feb 13, 2016
Originally published on February 13, 2016 11:05 pm

Supreme Court Justice Antonin Scalia died unexpectedly on Saturday. We spoke to NPR's Legal Affairs Correspondent Nina Totenberg about his life, legacy and what's next.

1. Let's talk about Scalia's legal perspective. He was known as a proponent of originalism. Can you tell us a bit about that?

Originalism, as defined by Justice Scalia and others, is that what is in the Constitution literally is what the founding fathers meant.

If you're talking about whether the death penalty in certain circumstance, or at all, is unconstitutional, the Founding Fathers thought it was constitutional because they had the death penalty then so they couldn't possibly have thought it was unconstitutional. And there's no such thing as an evolution of ideas and an evolution of society in what's cruel and unusual. He wouldn't buy that.

He believed the same thing in interpretation of statutes, that the words on the page are all that counts. That legislative history, that constitutional history, they don't count much if at all. What matters is the intent at the time. To put it most bluntly, "I mean what I say and not any more or any less."

When he joined the court, Scalia was the foremost of exponent of originalism, along with Robert Bork.

And he continued to be its foremost exponent. From being a sort of a fringe movement 30 or 40 years ago, it is now major league, perhaps the dominant philosophy — or was a dominant philosophy with his vote — on the Supreme court.

2. So will that be the core part of his legacy?

We do have to remember that he was not always predictable. He cast the fifth vote to strike down a law banning flag burning, saying that was the quintessential expression of political speech.

He wrote the most radical opinion in one of the post 9/11 terrorist cases, going against the Bush administration and saying you couldn't imprison an American without charging them and trying them.

To pigeonhole him simply as a conservative, which he was most of the time, is not to fully understand who he was.

3. Obviously his death comes in the middle of Supreme Court term. So what does that mean for cases that may be outstanding?

There are a huge number of important issues, some of which have been argued, some of which haven't.

Affirmative action has been argued. But abortion, immigration, a big religion case, some important environmental cases, they haven't been argued. Those cases will not be decided with a five to four vote, because there is not a fifth reliable conservative vote.

There are four reliable liberal votes, three reliable conservative votes, and one conservative swing vote in Justice Kennedy. What is going to happen to those? God only knows.

And what about cases Justice Scalia was already writing? The opinions he was already in charge of writing? Or cases in which there might have been a five to four vote and that it's now four to four?

The rule when there's a four-to-four decision — a tie decision — is that the lower court decision holds but has no precedential value.

In other words, it doesn't matter, it's like kissing your sister.

I don't recall an instance like this where a justice dies unexpectedly when nearly two thirds of the term is over.

Lord only knows what's going to happen.

4. What about Justice Scalia's replacement? How is the nomination process going to play out?

Mitch McConnell, the Senate majority leader, has already said he thinks it should wait until after the election. And that, it seems to me, likely will be the outcome.

President Obama can't get somebody confirmed without help from the Republican majority and they're not going to give it to him.

This will become a huge issue in the presidential campaign, something that hasn't happened before, at least in modern times.

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MICHEL MARTIN, HOST:

We're following the news of the death of Supreme Court Justice Antonin Scalia. And we have NPR's legal affairs correspondent Nina Totenberg on the line. Nina, thanks so much for speaking with us. We just heard your reflections about Justice Scalia. I'm just wondering what your thoughts are upon hearing this news, which is rather shocking.

NINA TOTENBERG, BYLINE: Well, it's totally unexpected because he was in - as far as I could tell - great shape and - both physically and mentally. And nobody expected him - there was no indication that he had any health problems. And, you know, from the piece I did that he was an enormous force on the court, sort of the leading force of conservatism there. And this is going to make for an enormous political fight just as the presidential election is about to take place. First, there will be the question as to whether there's enough time to confirm another nominee. And Sen. Leahy, the ranking Democrat on the Judiciary Committee has already said there's plenty of time. You can be sure that Republicans will not say that. And if nobody is confirmed, which is let's say at least a possibility, then the Supreme Court will be a central issue during the presidential election, something I don't believe it's ever been - in modern times, anyway. And so this is an enormous thing that's happened, and it'll affect the work of the court because there are no longer four reliably-conservative votes on the court. There are three and Justice Kennedy.

MARTIN: Well, I was going ask you to talk a little bit more about that. Where does Justice Scalia's death leave the court now? I'm particularly interested in its workload, how will it handle the workload and how will it handle the loss of a member? What happens to all the cases that are now before the court?

TOTENBERG: Well, I imagine they will still hear the cases. The court is not an institution that changes for much. And so they'll hear the cases, but whether they can decide them or not on a - if there's a 4-4 tie, that means that the lower court decision holds but has no precedential value. It's not valuable for future cases. So, you know, there are all these cases - everything from abortion to affirmative action to immigration coming out and more. And there was every possibility that some or all of them was going to be a 5 - on a 5 to 4 vote, and there no longer are four reliably-conservative justices. There are four reliably-conservative liberals - reliably-liberal justices, one swing justice and three conservative justices.

MARTIN: Nina, before we let you go - we have about a minute left - I think people see the public side of Justice Scalia. But one of the things that I think you would know well having covered the court for so long and so closely, is he actually had a warm friendship with one of the most progressive members of the court, which is Ruth Bader Ginsburg.

TOTENBERG: He was very close with...

MARTIN: Can you talk a little bit about that? Yeah.

TOTENBERG: He was very close with Justice Ginsburg. I did an interview with both of them on the stage about a year and a half ago or a year ago, and they came to play. And they came with warm memories of each other and battling each other on all of the issues on which they disagreed - of which there are many. And I have to say as somebody who's known him for a very long time, he was a warm friend - and I considered myself a friend - in many, many ways. He could take it as well as he gave it, and he just - and he had a wonderful sense of humor. And you just sort of had to rock with the - with what happened with him. He was not a gentle soul, but he was a delightful and happy one.

MARTIN: That's NPR's legal affairs correspondent Nina Totenberg, speaking with us about the death today of Associate Justice Antonin Scalia. Nina Totenberg, thanks so much for speaking with us.

TOTENBERG: My pleasure. Transcript provided by NPR, Copyright NPR.