The Supreme Court after Scaliaon 21 February 2016
By Joseph Daniel Ura
In thirty years’ service as an Associate Justice of the United States Supreme Court, Antonin Scalia left a deep impression on American law, politics, and society.
He was the leading public advocate of the view that the United States Constitution and federal laws should be narrowly interpreted according to the original public meaning of their text. Although legal scholars continue to debate how he applied this principle, Scalia’s “textualism” was a potent legal philosophy that worked its way into the Supreme Court’s doctrine on issues like federalism (the division of constitutional authority between American state governments and our national government), criminal law, and gun rights. Just as importantly, though, Scalia’s claim that the text of the Constitution generally imposes strict limits on government power are now essential elements of conservative political thought and rhetoric in the United States. Scalia’s intellectual leadership also influenced a generation of conservative lawyers and politicians who have carried his views into courtrooms and political campaigns around the country.
In addition to influencing American law and the conservative political movement, Justice Scalia also likely pushed the American people to become more politically conservative, as well.
In an analysis of more than 50 years of data on Americans’ collective responses to Supreme Court decisions published in the American Journal of Political Science in 2014, I found that public responses to important (salient) Supreme Court decisions were typically marked by a negative response in public opinion in the short-term that decays and is replaced by a long-run movement in public opinion toward the positions adopted by the Court. In other words, on average, there is an ideological backlash in public opinion against important decisions of the Supreme Court. However, these negative responses are relatively short lived. Over the long run, the net effect of negative reactions the Court’s decisions tends to be replaced by significant movement toward the ideological positions taken by the Supreme Court. By making a net contribution to politically conservative decisions on the Supreme Court during his long tenure, Justice Scalia’s presence on the Court pulled Americans toward the political right.
The public’s reaction to Miranda v. Arizona (1966), which held that police must inform criminal suspects of their constitutional rights to remain silent and to have a lawyer present during any questioning, is indicative of this pattern. The public’s first responses to Miranda showed deep opposition to the ruling. A contemporary poll conducted by the Opinion Research Corporation asked Americans about their views of “the Supreme Court’s decision in the Miranda case.” Fifty-six percent of respondents agreed that “police should again be allowed to be tougher with suspects than they can be now. Only thirty-two percent agreed that “the present restrictions on the police—since the Court's decision—are correct and fair.” However, in the decades since Miranda, Americans have largely embraced the decision. A survey conducted in 2000 by Princeton Survey Research Associates and Newsweek found that 85 percent of Americans agreed with the “recent decision upholding 'Miranda Rules' [Dickerson v. United States(2000)] requiring police to inform arrested suspects of their rights to remain silent and to have a lawyer present during any questioning.”
Justice Scalia often played a pivotal role in Supreme Court decisions, providing a decisive vote that tipped the Court toward decisions with conservative policy implications.
Indeed, during his three decades on the Court, Scalia was the cornerstone of a conservative bloc on the Supreme Court that grew to include Justice Clarence Thomas, Chief Justice John Roberts, and Justice Samuel Alito. In several important cases, this group held together and attracted support from the more politically idiosyncratic Justice Anthony Kennedy to craft decisions with deeply conservative policy implications. For example, this group formed a bare five justice majority in Citizens United v. Federal Election Commission (2010), holding that the First Amendment to the United States Constitution protects the right of groups of people assembled as corporations to engage in political speech. This ruling opened the door to extensive, new political activities by American businesses. Likewise, in Florence v. Board of Chosen Freeholders (2012) the five conservatives together found that government officials may strip search any person arrested for any crime as part of procedures for admitting him or her to jail, even if they have no reason to suspect that he or she is carrying prohibited items. Indeed, an analysis by The New York Times finds that Justice Scalia was part of five justice majorities in eighty-five cases (out of about 800 cases overall) since the appointment of Chief Justice Roberts in 2005. Although Justice Scalia did not write the majority opinion for most of these cases, his vote was pivotal to the outcome. Had a more liberal justice served in his place over the last decade, the political charge of many of these decisions would have been different. And, if President Obama or his successor manages to appoint a more liberal justice to his seat, some of these decisions may well be reversed.
In fact, it is quite likely that Justice Scalia’s absence will tip the scales in several high profile cases from likely conservative wins to a series of evenly divided decisions by the Supreme Court. (Tie votes allow the decision of the lower court to stand and set no precedent for other courts to follow.) Scalia’s absence will likely prevent the Supreme Court from adding its voice in opposition to affirmative action, abortion rights, the president’s immigration policies, and other salient topics. In the short run, the absence of a string of narrowly decided conservative decisions in salient cases will forestall a likely bounce in liberal policy sentiment (backlash against the conservative decisions), aiding Republicans in the upcoming elections. Yet, the conservative outcomes the Court probably would have reached had Justice Scalia not passed away so suddenly will never be. And, as a result, the American public is likely to remain more liberal over the long run than it would have been otherwise.
Justice Scalia’s legacy includes both an intellectual contribution to American law and elite politics and a prominent part in the Supreme Court’s role in shifting mass American politics to the right over the last three decades. Together, these two forces created fertile ground for dynamic changes in American politics, including the emergence of the Tea Party movement during the last several years. Although he was frustrated by some developments in American public life, including the rapidly expanding scope of gay rights, Antonin Scalia is easily one of the most consequential figures in the last half century of American politics and among the most influential Supreme Court justices ever.
Joseph Daniel Ura is Associate Professor of Political Science at Texas A&M University. His research addresses American national politics, especially the United States Supreme Court and political representation and responsiveness in the U.S. Congress. His recent publications include contributions to the Journal of Public Administration Research and Theory, the Journal of Politics, the American Journal of Political Science, and Political Communication.
Image: Stephen Masker CC BY