Battle to Replace Supreme Court Justice Antonin Scalia Looms as Major Election Issue

Posted Feb. 17, 2016

MP3 Interview with Ari Paul, New York City-based journalist, conducted by Scott Harris


With the death of the Supreme Court's longest serving justice Antonin Scalia on Feb. 13, new political battle lines were drawn over the fight to replace him. Just hours after the rigidly conservative justice's demise, Republican Senate Majority Leader Mitch McConnell asserted that the nomination of a replacement should wait until after the November 2016 presidential election, an opinion shared by other GOP senators and presidential candidates. But President Obama has pledged to fulfill his constitutional duty by nominating a successor "in due time."

Scalia, appointed by President Ronald Reagan in 1986, was the court's most influential conservative member. He promoted an originalist interpretation of the U.S. Constitution, opposing the more progressive approach of contemporary ratification, where each generation must interpret the Constitution according to changes in society. During oral arguments in a pivotal affirmative action case in December 2015, Justice Scalia suggested that African-American students might belong at less rigorous schools than their white counterparts. In overturning a key section of the Voting Rights Act in 2013, Scalia said the legislation was a "perpetuation of racial entitlement." The late justice was also well-known for his conservative, anti-gay and lesbian views.

Between The Lines' Scott Harris spoke with New York City-based journalist Ari Paul, who has covered politics for The Nation, Vice, The Guardian, Dissent, Jacobin and many other publications. Here, he assesses Scalia's conservative legacy and the coming battle over nominating a replacement. He begins by reviewing some of the important cases now pending before the high court that will be affected by Scalia's death.

ARI PAUL: One of the biggest ones of course, is the recently argued Frederichs v. CTA (California Teachers Association) which is a case that would've very much affected all public sector unions in the United States. The case would've imposed a right-to-work regime over all public sector unions. That would mean that anyone who does not want to join the union in a certain workplace that is unionized, would not have to pay dues. Currently, those people who don't want to join a union have to pay an "agency fee" that covered the collective bargaining rights and all the benefits that they get along with union representation. This would sort of allow people to opt out in a workplace, that would very much cripple a lot of public sector unions – especially teacher unions – because the members' due money is how these unions operate.

So if they're losing 20 to 30 percent of their membership dues, this very much means layoffs. It's very difficult for them to operate. This was argued in January. It had unionists extremely nervous because they knew it would be a close vote, but at the hearings, it was very clear to everybody that all five conservative justices were buying the anti-union argument being presented there, and most unions were preparing for a new right-to-work regime coming in June.

So, with the death of Scalia, that leaves everything at about a 4-4. And this kicks the case back down to the original 9th Circuit decision which upheld the current union-dues regime. Now that kind of gives labor a reprieve for awhile. It's not exactly a victory. This would mean that either the case would have to be reheard before the full court in the next term, so this could kick the can to possibly 2017 or the more likely situation is that the anti-union organizations that have backed these right-to-work lawsuits will simply find another test case and present it and they'll have another chance. Now, we don't know who's going to replace Scalia, so that totally remakes the landscape. But it's definitely a reprieve for labor and on a number of other issues, especially the case out of Texas with affirmative action. There was a fear that among some people that there would be a 5-4 decision striking down the ability to use any kind of race-based affirmative action in admissions in higher education. That's also thrown to the wind. So there's a lot of cases, but those are sort of the big ones that are cited in the news.

BETWEEN THE LINES: One of the cases I've been reading about is the redistricting case where conservative forces are trying to contend that only voters should be counted in congressional districts when it comes to designing and mapping out new congressional district maps. And of course, that would negate counting underage citizens, non-citizens and others who don't have the right to vote – prisoners, as well, of course. What't the import of that case do you think?

ARI PAUL: Well, this really is a part of the almost, sort of, half-century long battle that the political right has waged through the judicial realm to undo a lot of the progress of the 1960s and the 1970s. If you read Jeffrey Toobin's book, called "The Nine" about the Supreme Court, actually lays it out fairly well and Scalia was very much part of this sort of multidecade-long movement to undo a lot of the legal progress, and part of that is the Civil Rights Act and the Voting Rights Act. So he was very much a part of these cases that would have the court say, "Well, these things were necessary in a time of social upheaval and a time of transition, but they don't fit for 2016. We've made a lot of progress since then; it's time to undo these things."

And of course, people on the civil rights of things would argue the opposite, that of course it's not 50 years ago, but there are new problems and new issues and things need to have oversight. So, that's very much something that's going to be a key talking point as the question of who replaces Scalia goes forward, because that really is what's at stake for the right, right now. They've enjoyed a 5-4 kind of block to advance these things ever since the George W. Bush administration when O'Connor, who's considered more of a centrist, left. So this really throws their project into the gears.

BETWEEN THE LINES: Maybe you could explore one other comment, and that was a comment made by Justice Scalia in another case where he's talking about how blacks in this country would not benefit from placement in prestigious universities, but would be better placed in slower track institutions. Another example of what I think could only be classified as blatant racism.

ARI PAUL: Yeah, I mean, you know, when he died, there was sort of a feeling amongst a lot of people of "oh was he even that old?" "Was he ill?" I haven't seen the man's medical records, but it's quite possible that this was a man towards the end of his life where he sort of felt, "I can just about say anything I want at this point. Who's going to stop me?"

I mean, they enjoy a great degree of freedom to say exactly what's on their mind. But as you say, it does sort of really show the dark heart of that part of the conservative movement. That this was their hero. This was their activist judge who was willing to say something the average person interprets as blatantly racist.

Related Links: