Q+A: What Does Justice Scalia’s Death Mean for the Supreme Court?

Supreme Court Justice Antonin Scalia passed away suddenly at the age of 79 last weekend, shifting the dynamic of the nation’s highest court and igniting a heated debate over his successor.

Appointed to the Court by President Ronald Reagan in 1986, Scalia served for nearly thirty years as the Court’s leading and most provocative conservative voice. Described as brilliant, colorful and outspoken, he was known for his “originalist” interpretations of the Constitution and for his very conservative positions on issues like abortion, gay rights, religion and the Second Amendment.

As we wait to see whether an Obama-nominated replacement for Scalia will make it through a Senate confirmation or whether the next administration will make the decision, we checked in with Lisa McElroy, JD, to find out what the empty spot on the bench means for the Court this term, especially as they are expected to decide several highly controversial cases, including those on abortion, immigration and affirmative action.

McElroy, an associate professor in Drexel’s Kline School of Law, is an expert on the Supreme Court. She previously wrote the “Plain English” column on SCOTUSblog, and has even authored children’s books about Supreme Court justices including Sonia Sotomayor and Sandra Day O’Connor.

Antonin_Scalia_Official_SCOTUS_PortraitWhat do you think Scalia’s legacy will be? How will he be remembered?

His legacy will be for making others interested in and knowledgeable about originalism, his theory of constitutional interpretation. He will also be remembered for his brilliant writing, his sharp wit and his acerbic tone, especially on social issues.

Who do you think Obama will nominate? Do you think Republican-controlled Senate will confirm the nomination?

I do not think it matters whom Obama nominates at this point. There are a lot of predictions out there, but the fact remains that the Senate isn’t going to let anyone through, at least for a while. I predict we’ll have at least one failed nomination before the Senate even starts to play ball.

In the meantime, how does Scalia’s death change the dynamic of the court?

These nine people have worked together for many, many years. They have a rhythm and a way of working together that is unique to their group, their institution. His death will mean that his voice is no longer part of that conversation. Justice Ginsburg noted that he always helped make her opinions better when he dissented. His contributions may mean that the Court seems less animated, but it will also mean that his valued perspective will be missing.

What cases this term do you think will be most affected?

No doubt, the cases involving immigration, abortion and energy may top the list. However, if he would have been a member of a five-Justice majority, it may be that the cases will be re-argued in the future when the Court is back to its full membership of nine.

Members of the news media who are interested in speaking with McElroy should contact Alex McKechnie at ahm62@drexel.edu or 215.895.2705.