In attacking the decision to legalise same-sex marriage (Obergefell v Hodges, 2015), Justice Antonin Scalia typically did not pull his punches over what he saw as judges overreaching themselves, legislating rather than interpreting: "This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government... A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy".
Not that the US Supreme Court's conservative majority has been unwilling occasionally itself to foil the will of the majority expressed through Congress or the ballot box – the thwarting of Al Gore's election as president, a case in point. "Get over it," was Scalia's typically robust response to being reminded of the majority opinion he wrote.
His death at the age of 79 leaves a gaping hole in, and tips the balance on, the court of which he was the longest serving member, appointed in 1986 by Ronald Reagan.
Scalia ranks among the most influential justices in US history, alongside figures like John Marshall, Oliver Wendell Holmes and William Brennan. His legacy is not so much one of individual judgments but championing a jurisprudence of “constitutional originalism” and “textualism”, a repudiation particularly of the idea of an “evolving” constitution that allowed judges to respond to the changing needs and mores of the day.
Originalism interprets the constitution as it was understood by those who drafted and ratified it. Textualism considers the words of statutes and abjures turning to outside sources like statements from members of Congress about the meaning and purpose of laws. Both ideas have taken firm root in the US system.
Scalia’s death leaves a court which has been securely in the hands of political and legal conservatives for four decades – since President Nixon’s first year in office. It now faces the prospect of 4-4 deadlocks on some of the most important cases in the current term.
A tie leaves lower court decisions in place with the prospect that Obama may be blocked on immigration reform, but unions may be successful in upholding their rights, while new abortion restrictions may go through.
Republicans have promised to block President Obama’s right to nominate Scalia’s successor, denying what Scalia would surely have seen as the constitution’s original intention.
As Senate Majority Leader Mitch McConnell told fellow senators back in 2006 when Democrats were threatening a filibuster of a Bush nominee: "The constitution of the United States is at stake. Article II, Section 2 clearly provides that the President, and the President alone, nominates judges. The Senate is empowered to give advice and consent.…". Not, as he pointed out, to "advise and obstruct". He is singing an altogether different song today.