Does Antonin Scalia Still Matter?

The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts one.


Now that Labor Day is behind us, the political event that will determine the direction of our government for at least the next two years is only a few weeks off. I refer, of course, to the opening of the Supreme Court's term on the first Monday in October. In the near term, the deliberations of the Court will matter a good deal more than who wins the election.  

Barack Obama and Mitt Romney are tussling over which of them will get to lead the nation over the fiscal cliff. Meanwhile, in its first set of arguments, the Court will deal with affirmative action and international human rights. By next spring, the winner in November may have convinced Congress to keep the lights on in the federal government; the Court will probably have settled the status of the Voting Rights Act and same-sex marriage.

Whatever you think of its decisions, the Supreme Court is the one federal body that works.

It's interesting that neither Barack Obama nor Mitt Romney uttered the words "Supreme Court" in his acceptance speech. Romney did not repeat his promise to appoint judges like Chief Justice John Roberts; Obama did not attack Citizens UnitedThe Court, on the last day of its term, had dodged a political bullet. Its position is, for the moment, unassailable. 

Though the faces will be the same, the Court that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28. The last Term will have rearranged relationships, alliances, and lines of power. The Court is now, in fact as well as name, the Roberts Court. The Chief Justice is the premier player both sides must deal with. His ascent may coincide with a significant fall.  

October 1 may be the first day of the post-Scalia era.

I have flashback dreams of the agonizing 2011 term. The "Most Amazing Words Uttered in Court" competition was fierce last year. There was "There's a bare buttock there, and there's a bare buttock here," uttered solemnly by Seth Waxman, representing ABC in the "dirty words" case, as he pointed to nude gods and warriors on the frieze decorating the courtroom.  

There was "No, they couldn't do it," intoned with a straight face by Michael Carvin, the lawyer for the National Federation of Independent Business. Justice Stephen Breyer had asked him during the health-care argument whether Congress could require vaccinations if it knew that an epidemic would otherwise kill 50 percent of the population. Nope, said Carvin; the apocalypse would be "a local matter." 

There was "Well, don't obligate yourself to that," tossed off by Justice Antonin Scalia to Solicitor General Donald Verrilli during the health-care argument. Verrilli was noting that uninsured patients receive medical care they can't pay for because of "social norms to which we've obligated ourselves." Scalia suggested that the whole mandate mess would go away if we let the uninsured die on the hospital steps.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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