Justice Antonin Scalia was a true original. His Successor Needs to be More Than Just a “Fine Jurist”

I once asked a question that stumped U.S. Supreme Court Justice Antonin Scalia.  Before he died, of course. It was about something that at the time seemed in some ways trivial, and I mentally packed it away for a few years until he passed away suddenly this past February, leaving our highest Court sharply divided on some of the most pressing issues of our era. Sharply divided is one thing, and the most important cases the U.S. Supreme Court decides are almost all the product of a sharply divided Court.  But what happens if the divide on these crucial cases becomes an outright deadlock? Which is precisely what our little encounter was about, although I’d gather none of us involved thought it would ever mean more than it did at the time, which was pretty much nothing beyond a judicial parlor game.  

But we were wrong. The game is for real, and although the naming and confirmation of U.S. Supreme Court Justices should be an area where our three separate but (theoretically) equal branches of government work together for the national good (executive nomination, legislative confirmation, and ensuing judicial completion), it hasn’t been that way for a long time.  And now, the politicization of this process, which used to at least be sort of dignified, is just more grist for the news mill.

For about seven years, I was fortunate to be a law clerk for my state’s Supreme Court.  These courts are mostly set up like the U.S. Supreme Court: elected or appointed Justices, often with some kind of judicial experience, but not always.  Crucial to the set-up is, of course, an uneven number of seated Justices to ensure there’s a winner. If there are only six Justices on a case, and it ties 3-3, the net effect is... nothing. The ruling of the lower court stands, so there’s still kind of a winner (whichever party won below), but no precedent is made and however much time and energy spent in our court on the case, it was ultimately just sound and fury, signifying nothing except countless deceased trees and hours of publicly-funded salaries.

When this happened, the accompanying order would say something like “AND NOW, this 31st day of March, the order of the Superior Court is affirmed by operation of law, as the votes among eligible Justices are equally divided.”  All told, it could take five or seven years for a case to wind through its entire litigational life, the final two of which might be spent in the limbo of deadlock in our court before being put out to pasture after one set of Justices couldn’t lure someone from the other side over.  

Aggravating and unproductive as this was, we clerks were a nerdy bunch, and we made our fun where we could. Few of us had taken any extensive Latin, but we liked throwing it around whenever possible.  I can’t recall now which case wound up in a deadlock that led us to start wondering how we’d word the order in Latin, an exercise in legal showmanship.  An email chain or an office conversation came up with some candidates: “curiam divisum” was mine, based on a few years of French and knowing that an opinion issued by the court together, without a specific author, was called “per curiam,” meaning, “by the Court.”

Justice Antonin Scalia was every bit the legendary thinker and writer he’s been deemed

We went back and forth about this, then I remembered a seminar I’d taken about five years earlier with a fellow whose personal brand is legal writing and the granular perfection thereof. I went to his website, found the contact email, re-introduced myself, and wrote up our little intra-chambers discussion as a query he might be able to mediate.  He wrote back and to my surprise, he didn’t know the answer either.  To my double-surprise, he had already forwarded along and posed the question to none other than Justice Scalia, with whom he apparently was tight enough to Blackberry with (it was 2011). Many of us go through law school and hope to catch on with a local judge.  If we’re really hot stuff, we clerk for a federal judge, maybe even at the appellate level circuits.  Those who get to clerk for a U.S. Supreme Court Justice, argue before the Court, or have any substantive personal contact at all with the Justices, are truly the rara avis of the legal world.  

However much I disagreed with his views, Justice Antonin Scalia was every bit the legendary thinker and writer he’s been deemed. If you read closely and hard enough, his First Amendment freedom of speech arguments in support of pro-lifers waving plastic fetuses around abortion clinics could be used verbatim to support the Occupy Movement that began on the sidewalks of New York City’s Wall Street in September 2011. I’d bet the farm I don’t own that he knew it too. He was a true original, which is hard enough to find in our field, much less at the highest level possible. There will never be another, or anyone even close. But it’s not for me to write any more obituaries or commentary on that matter.

It is, rather, my humble privilege to say that my query as to how centuries-bygone Latins would state an equally divided court stumped the great Scalia. Delicacy and respect for the departed keeps me from quoting or revealing too much of his response. But it was incredibly thoughtful. And because he was not sure, he wrote to our mutual contact that he could check when he was able to get back to his Latin dictionary “next week.”  Sadly, I never got a follow-up response, so the question remains open.  I’ll admit, though, my preferred “curiam divisum” was “surely not” correct, and Scalia laid out in precise and concise points exactly why this was so.  Mea culpa, indeed.

But here’s what that brought me back to this fun little episode in my clerking career. It was clear from both responses that not only were they stumped; it had never even come up for either of them. The U.S. Supreme Court has nine sitting Justices, but if one has to sit out for a case for whatever reason, it usually doesn’t make the news. Before President Obama appointed Elena Kagan to the High Court in 2010, she was U.S. Solicitor General - basically the federal government’s lawyer when it is involved in a case before the U.S. Supreme Court. So she voluntarily recused herself from certain cases she was in some way involved in prior to being seated on the Big Bench. So what. Or, as they say, qui curat?

Scalia’s death, however, created a very real deadlock that apparently has already begun raising its head this term in various contexts. Although every case is different and has its own peculiarities, there used to be a usual alignment of sorts, with the Democratic-appointed Justices (Ginsburg - aka, “the Notorious RBG”, Breyer, Sotomayor, and Kagan) on one side and the Republican-appointed Justices (Roberts, Kennedy, Thomas, Alito, and Scalia) on the other side. Of course, Roberts and Kennedy have had their swing/liberal moments, but generally, we kind of knew what we’d get. And often enough, it would be 5-4. 9-0 decisions rarely make the news beyond the civil procedure or antitrust diehards. The close cases are the ones that play the big stage. They’re the ones that we read about in the mainstream media; the ones that make people take to the streets to celebrate or protest. Cases involving criminal justice; privacy; civil rights; the freedom of speech and religion; who’s responsible when a drug or a car kills someone; the death penalty, when the state kills a killer; abortion and contraception.

A bench full of “fine jurists” not only bores, but doesn’t actually move our most important debates

  Since Scalia’s death at least a few commentators have pointed to a 2004 episode of the “West Wing” television program, when a conservative Justice dies unexpectedly and a nomination crisis ensues in the liberal White House. The judge at the top of the list inspires no one. But he’s safe, does things the right way and by the books, and is introduced as inoffensive and confirmable. From what I’ve read, President Obama’s pending nominee, the Honorable Merrick Garland, is what one character in the episode describes, with little enthusiasm, as a “fine jurist.”  But as the episode ultimately concludes, the outcome celebrates the power of judicial thinkers who don’t play it safe. The ones who take strong positions on the hardest cases, relishing the ideological give-and-take, and the expression of “extreme views” on the most sensitive and controversial cases. Our Court was like that decades ago, and I dearly wish it could be that way again. Justice Scalia clearly loved the moments when he knew he’d anger at least half of the country, and those kinds of cases and controversies are necessary. I want those moments too. The Court may be the most functionally passive of the three branches, but it has the final word, however problematic the questions before it. A bench full of “fine jurists” not only bores, but doesn’t actually move our most important debates further when the most sensitive cases are in its playing field.

There are no easy answers to these kinds of cases, but at least in the past, there’d be closure and resolution of some sort, even at 5-4, and precedent for when the next similar case comes along to inch the gears further towards enlightenment or disaster, depending on one’s position. But not since February 13, 2016. Scalia’s unexpected death left a Court that for the first time in decades faces the very real prospect of deadlock. In fact, on May 16, 2016, as this piece is being finalized, the New York Times reports that the Court has had to give up and return a major case on access to contraception back to the lower courts in an obvious effort to avert a probable deadlock. Thus, the Court finds itself in the unpleasant position of needing to actually know how to draft an order stating that the Court, being equally divided, cannot issue a ruling. Poignantly, the one person who cared and knew enough to at least tackle the question and promise to check his Latin dictionary (for all his bombast, he was as nerdy as it gets) is the very one who is no longer available to even try to answer it.

Susan Nanes practices law at Pond Lehocky Stern Giordano in Philadelphia, Pennsylvania.  She clerked for a Justice of the Supreme Court of Pennsylvania from 2008 through 2015, has published several articles in Philadelphia's legal press, and received her law school's award for outstanding legal writing.

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