First things first, condolences to Justice Antonin Scalia’s family.
Justice Antonin Scalia, the U.S. Supreme Court justice best known for his hard conservatism, reliance upon strict interpretation, pugnacious dissents and bitter tirades against LGBT people, died in his sleep yesterday at a ranch near Marfa, Texas. He was 79.
His death in office, a rarity in the modern history of SCOTUS (and the most recent death-in-office since Justice William Rehnquist in 2005), leaves a crucial vacancy in the 9-seat court:
- Conservative justices Roberts (Chief Justice), Alito and Thomas;
- Liberal justices Ginsburg, Breyer, Sotomayor and Kagan;
- Swing vote justice Kennedy.
The function of the judiciary does not abide a vacuum, so President Obama, like most normal presidents, has announced that he will appoint a candidate to replace Scalia soon. Meanwhile, no higher than the Senate Majority Leader, Mitch McConnell, has gone to the press requesting that the President does NOT appoint a successor to Scalia during the election season, no doubt while the remaining six Republican candidates (Trump, Cruz, Rubio, Carson, Bush and Kasich) made fools of themselves and each other on stage at last night’s #GOPDebate.
But the death of a member of the now-former conservative majority on SCOTUS, and the likelihood that PBO will appoint a liberal candidate for the majority-Republican Senate’s consideration, ties directly into the already-existing anxiety of this election year for Democrats.
We can talk about voter apathy, but that doesn’t describe the widespread anxiety of this moment in U.S. history. It happens when one Democrat is running to succeed a termed-out consecutive two-term incumbent Democratic president. This last happened in 2000, and Gore both lost his own state (Tennessee) and lost the opportunity to change history.
We have not been in a similar situation in 16 years, and this will only be the third time this has happened in history: 1920 (Cox/Roosevelt running to succeed Wilson; lost to Coolidge), 2000 (Gore/Lieberman running to succeed Clinton; lost to Bush), and 2016 (?/? running to succeed Obama). The first two lost.
If a Democrat wins 2016, it will be the first time in Democratic party history that the nation elects a Democratic successor to a termed-out incumbent Democratic president. By comparison, Republicans have done the same successfully: 1876 (electing R. Hayes to succeed two-term Grant) and 1988 (electing GHW Bush to succeed two-term Reagan).
Now enter yesterday’s death of SCOTUS justice Antonin Scalia in an election year, followed up by President Obama’s vow to nominate a candidate in the face of a majority-Republican Senate. The death of a SCOTUS justice in an election year has only happened a few times in history, more so in the 19th century: R. Trimble (1828), H. Baldwin (1844), R. Taney (1864), J. McKinley (1852), P.V. Daniel (1860), J.P. Bradley (1892), M. Waite (1888) and J.R. Lamar (1916).
This is shaping up to be a historic year which may not follow prior trends. This is shaping up to be a referendum on Obama’s legacy as a president, and on the Democratic Party as a coalition of politicians. And President Obama is uniquely positioned to buck history.
Scalia’s absence will reverberate around the legal landscape for some time to come. For LGBT people of the modern age, he was the top and longest-serving spokesbigot from a bygone era.
However, he should be most memorable for his prediction in his angry dissent for Lawrence v. Texas (2003) that the landmark case, striking down so-called “sodomy laws” across the United States which penalized consensual non-vaginal sexual relations, would likely lead to the question of marriage equality:
“If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring, what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution.’ Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
This dissent, ironically, proved true the next year when the Massachusetts Supreme Judicial Court made Massachusetts the first state to have marriage equality (Goodrich v. Department of Public Health), and cited Lawrence as judicial precedent.
Ironically, Scalia’s dissent was later cited by U.S. District Judge Orlando Garcia in – wait for it – the Western District of TEXAS (2014) to strike down the state’s constitutional ban on marriage equality for same-sex couples.
In a way, Scalia, as a hard-conservative justice in the highest court in the land, acted as a bit of a performance artist. His dissents helped undermine existing laws against the equality of sexual orientations, not just in Lawrence but also in his just-as-angry dissent to United States v. Windsor (2013), which struck down Section 3 of the 1996 Defense of Marriage Act (DOMA).
Maybe, despite his tirades against us LGBTQs, we should be thankful for being brazenly honest.
Now President Obama, a president unqualified and unprecedented in his support of LGBT integration and equality in American, has the opportunity to upset the long-running conservative majority on the court and indirectly set innumerable judicial precedents for decades to come. This not only has implications for LGBT equality, but also for women’s health and reproductive rights, healthcare rights, education, firearms, drugs, redistricting, natural resources, climate change, and so many other issues which will go up to SCOTUS in the coming years. Either Democrat who is running to succeed Obama, Clinton or Sanders, is also hoping to have that opportunity in their first term. And any Republican running to dismantle Obama’s legacy will have the wish to return SCOTUS to a conservative majority.
Short lists are already being floated in the beltway news media, the leader of which is Judge Sri Srinivasan of the D.C. Circuit Court of Appeals. He was confirmed unanimously to the Circuit Court in 2013 by the Senate.