When U.S. Marshals confirmed Justice Antonin Scalia died Saturday while on a hunting trip in Texas, the country lost one of its most persuasive and articulate conservative voices.
From pointed positions on Affirmative Action and the death penalty to controversial takes on immigration and labor unions, the 79-year-old jurist stood up for moderate to hard-Right positions that usually put him at odds with a majority of African Americans — and many Democrats in general. To most conservatives, though, Scalia was a darling of their movement. The passion and ideas he inserted into the opinions he wrote for the United States Supreme Court influenced national conservative thought and policy way beyond the scope of those legal arguments.
“Most recently, Justice Scalia set off a national firestorm,” says Mark T. Harris, an African-American attorney and professor at the University of California, Merced.
“During oral arguments in Fisher vs. University of Texas, the University of Texas’ so-called Affirmative Action case,” Harris points out, “Justice Scalia questioned whether counsel were familiar with a premise from the book “Mismatch,” authored by a law professor and economist from UCLA and the other a former New York Times Supreme Court Reporter professor.”
In “Mismatch,” the authors questioned whether some African-American students attending highly competitive universities might fare better in “slower-track schools” rather than in more competitive academic environments.
“For the record, Scalia did not endorse the premise of “Mismatch,” says Harris, who served as Deputy Chief of Staff to late U.S. Commerce Secretary Ronald H. Brown during President Bill Clinton’s first term. “He merely raised it for consideration.”
In 1986, President Ronald Reagan appointed Justice Scalia to the United States Supreme Court after he served on the United States Circuit Court of Appeals for the District of Columbia. Educated at Georgetown University and Harvard Law School, Justice Scalia had a reputation for a high level of intelligence, coupled with a biting wit and a willingness to engage in opinionated discussions on topics involving the U.S. Constitution.
Critics and supporters of Justice Scalia may never agree on whether his controversial comments on Affirmative Action were merely a reference to another scholar’s work or if the Italian-American Supreme Court Justice took the convenience of attributing his own assessment of Black students to another person’s argument. Either way, for Justice Scalia, Affirmative Action was only one of the hot-button issues on which he was outspoken. Scalia favored the death penalty; opposed abortion rights for women; supported removing the limits to political free expression through campaign contributions; favored broadening the authority states have relative to the deportation of “unwanted immigrants;” and opposed the expansion of hand gun limitations. He even disagreed with the decision in African-American Supreme Court Justice Thurgood Marshall’s signature legislative accomplishment, Brown vs. Board of Education, which integrated America’s schools.
All in all, in the short run, Justice Scalia’s death will mean that the narrow one-person “soft” majority that conservatives have enjoyed on the U.S. Supreme Court will come to a temporary halt at least.
Justice Anthony Kennedy, who some consider a conservative similar to Justice Scalia and the remaining conservatives on the Court (Justices Samuel Alito, Clarence Thomas and Chief Justice John Roberts), has swung back and forth between the conservative and liberal factions over the past several years. Most immediately, the Court will experience an apparent four-to-four liberal to conservative “tie” between Republican and Democratic presidential appointees. President Obama has already appointed two of the Supreme Court’s three women associate justices (Justice Elena Kagan and Justice Sonia Sotomayor) and just announced he will forward his nominee to replace Justice Scalia immediately to the U.S. Senate for confirmation. President Obama is pushing forward despite U.S. Senate Majority Leader Mitch McConnell announcing that, in his opinion — and that of his Republican Senate colleagues — whomever the president names will not receive confirmation by the U.S. Congress.
For African Americans, Justice Scalia’s absence will have a direct impact on the outcomes of several cases currently before the Court. The aforementioned University of Texas “Affirmative Action” in higher education case will be decided between now and June of this year. That case will probably have four justices in favor of the University of Texas supporting the “critical mass theory” which supports keeping some form of preferential admissions for Black students and other minorities intact.
Regarding another controversial case, the United States vs. Texas, the Court must decide the fate of the Obama administration’s immigration policies which, if allowed to take effect, will temporarily enable close to five million undocumented immigrants to remain in the country. While the misperception that all undocumented immigrants are Latino persists, the reality is many of them are Blacks from the Caribbean and Africa.
In California, attempts to reform public education, which largely affects African-American schoolchildren, will also be impacted by Scalia’s passing. In the case, Friedrichs vs. California Teachers Association, it appears likely that an ambitious effort to defund mandatory membership in public sector unions will gain the necessary five favorable votes on the Supreme Court. Currently, this effort only has four conservative votes. Moreover, because the plaintiffs in this case lost in the court below, according to thinkprogress.org, “a decision affirming the lower court in an evenly divided vote is effectively a victory for organized workers.”
Republicans are concerned that an Obama appointee might throw the ideological balance of the Supreme Court out of whack. But Obama not appointing a moderate or liberal to the high court if a GOP candidate wins the presidency this year, and as Republicans enjoy a majority in both Houses of the U.S. Congress, could undo much of the progress African Americans have made over the years.
“Both our country and the African-American community will best be served if President Obama’s nominee to replace Justice Scalia is granted the immediate full and fair consideration by the United States Senate without delay,” says Harris.
