Erwin Chemerinsky and Rick Hasen on the Passing of Supreme Court Justice Antonin Scalia and the Future of the Supreme Court

Prof. Hasen and Dean Chemerinsky recording podcast

Dean Chemerinsky and Prof. Hasen discuss the impact of Justice Scalia’s sudden death on the Supreme Court and the presidential election.

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  • Rick Hasen

    Chancellor's Professor of Law and Political Science
    Expertise: Election law, legislation, remedies, torts
    Election Law Blog | ELB Podcast | Book: Plutocrats United
  • Erwin Chemerinsky

    Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
    Expertise: Constitutional law, federal practice, civil rights and civil liberties, appellate litigation
  • Colleen Taricani (Host)

    Assistant Dean for Communications

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw,  #UCILawTalks

[Colleen Taricani] Hello and welcome. I'm Colleen Taricani for UCI Law Talks. Today we are discussing the sudden death of Supreme Court Justice Scalia over President's Day weekend and the complexities now presented for the Supreme Court and the upcoming election. And we have a wealth of intellectual riches here at the University of California, Irvine, School of Law on all things Supreme Court related and election law related. I'm delighted that both Erwin Chemerinsky and Rick Hasen can join me today in our podcast studio. Erwin Chemerinsky is the Dean of UCI Law and Distinguished Professor of Law and the Raymond Pryke Professor of First Amendment Law. He is the leading scholar on constitutional law, the Supreme Court, and the author of eight books including, The Case Against the Supreme Court, published in fall of 2014. Rick Hasen is Chancellor's Professor of Law and Political Science at UCI law. He is the leading scholar on election law and his latest book just published in January of 2016 is Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.

[Rick Hasen] Hi, this is Rick Hasen of UCI, School of Law and I'm sitting down with Erwin Chemerinsky, the Dean of the School of Law and we're going to have a conversation about the sudden death of Supreme Court Justice Antonin Scalia. We’re sitting down just a few days after that death which really I think shocked the legal world even though he was 79 years old. No one knew that he was in any kind of poor health and anytime a justice leaves the Supreme Court, it's kind of a shock to the system. Erwin what are your thoughts about his legacy and about just what he meant to the Supreme Court?

[Erwin Chemerinsky] I don't think we'll be able to assess his legacy for years or even decades. A lot of that's going to depend on who replaces him and who fills other vacancies that are likely to occur in the near future. We can certainly assess his impact over the last 30 years. He was a powerful conservative voice, a consistent conservative. In many areas, he was in the majority in changing the law. For instance, he was in the majority and wrote the opinion with regard to the Second Amendment, the first time the Supreme Court found a constitutional right for gun owners. He was the majority in the Citizens United case saying corporations have the right to spend unlimited amounts of money on elections. He was the majority in a series of cases all of which limited federal law and expanded states' rights. In other areas, he was less successful for his strong objections in the Supreme Court on gay rights and the right to marriage equality. He never succeeded in having Roe v. Wade overruled. He never succeeded in eliminating the wall that separates church and state.

[RH] One of the things that's – I think is most interesting about his set of opinions is how he has to some extent ruled for criminal defendants. How do you assess that legacy? Because that seems to be one place where he maybe did not toe the conservative line the way that some other justices might have.

[EC] Justice Scalia had a more mixed record with regard to criminal law but overall it was still a conservative record. He was the foremost advocate for eliminating the exclusionary rule. This is the remedy for Fourth Amendment violations when the police engaged in illegal search and seizure where the evidence can't be used in court. Justice Scalia repeatedly said he wanted it to be eliminated. He was willing to allow Congress by statute to overrule Miranda v. Arizona so no longer would police have to give the warnings. He was always in the majority in limiting habeas corpus and the ability of individuals who claim they were wrongly convicted to get to federal court but there are exceptions. For instance, he wrote the opinion in Crawford v. Washington in 2004 that said that prosecutors cannot use testimonial statements from unavailable witnesses even if they're reliable. He was part of the majority in a case Apprendi v. New Jersey in 2000 where the court said that it has to be the jury that finds the facts that lead to any sentence greater than the statutory maximum. Just last June he wrote the opinion striking down a provision of the Armed Career Criminal Act is unconstitutionally vague. So I don't want to portray him as a liberal with regard to criminal justice. There were just more exceptions to his conservatism than you saw in most other areas of constitutional law.

[RH] One of the ways that Justice Scalia’s absence is going to be felt immediately is on the cases that are currently pending before the court. In fact, as we record this, the Supreme Court is expected to rule at any time on an emergency stay involving North Carolina's redistricting plan. It could have been that that would have been a 5-4 to grant the stay and allow elections to go forward under lines that a lower court had found to be an unconstitutional racial gerrymander. Might be that now we get a different result. And so, there are number of cases in which Justice Scalia's absence could make a difference perhaps the union case that is pending before the court about the power of public employee unions to require a fair share fees be paid by nonunion members. Other cases maybe, it does not make a difference such as in the affirmative action case where it might be that we would end up with the same result. What cases do you think are the ones to watch where we might see a different result? And do you expect and just to play this out, what could happen with a 4-4 tie? And I know that there is the possibility of either the court tying in basically sending it back leaving the lower court in place or perhaps setting it for re-argument. How do you think this will play out?

[EC] I agree with everything you just said. Let me start with being clear, in order for a justice to participate in decision, he or she must be on the bench at the time of the ruling. So any cases where oral arguments were held and votes have been had but the decision is not yet come down, Justice Scalia cannot participate in that decision. Now, if the vote was without Justice Scalia, 5-3 or 6-2 or 7-1 or eight to – those decisions will still come out without Justice Scalia participating. But there are going to be some cases that it would have been 5-4 with Justice Scalia in the majority and now it would be 4-4. I think everyone believes that an example of that is what you mentioned. Friedrichs v. California Teachers Association was argued on Monday, January 11, and the issue is whether non-union members will be continued to be required to pay the share of the union dues that go to support collective bargaining. From the oral arguments in the case, it seems clear that it’s going to be 5-4 to rule against the unions and overturned an almost 40 year old precedent. Now it seems to be 4-4, we can expect there might be other cases like that. In fact, you mention the possible stay in the North Carolina districting case. Just a week ago, the Supreme Court in a 5-4 ruling stayed and kept the Obama rules with regard to coal fired power plants and climate change from going into effect. Had it been even a few days later, that would likely be a 4-4 split and no stay would have been issued. You're also correct in what you said if it's a 4-4 split, the court has two choices: one is they can say that the lower court is affirmed without an opinion by an evenly divided court or they can put the case over for re-argument next year. That's happened in some high profile case in history: Brown v. Board of Education, Roe v. Wade, Citizens United v. Federal Election Commission where all cases argued one year are put over to the next. Now the issue there for the Supreme Court is: is the committee more likely to be a ninth justice next term than this term? You asked me for other examples. There's the contraceptive mandate case Zubik v. Burwell to be argued in March. There, a split exists among the circuits. Seven Federal Courts of Appeals upheld the contraceptive mandate. One of them struck it down. If the Supreme Court affirms all of those by an evenly divided court, a split among the lower courts remains and the same federal law means different things in varying parts of the country. That would seem real pressure for the Supreme Court to put it over for re-argument. There's also an abortion case coming up, Whole Woman Health v. Coal from Texas’ regulation for abortion and there's an immigration case, United States v. Texas. Those two could be instances was 4-4 split without Justice Scalia.

[RH] Let me add that there's a third possibility besides the sending it back to the lower courts or putting it off for re-argument, and re-argument, I think as we'll get to, is somewhat problematic when you don't know if there will be another justice before next February or March as that is certainly a real possibility. But the third possibility is what we saw in the first Fisher case, the first affirmative action case which is where the court issues essentially procedural decision that punts that decides something but not everything then sends it back for more fact finding essentially buys time. And so, it might be that in the contraceptive case or in some of these other cases we might seek some kind of opinion that splits the difference or puts it off for another day without actually failing to rule. And so, I think you know that is something that we might see as well.

[EC] I think it's an excellent point and there may be cases where the Supreme Court can come to agreement to rule narrowly, perhaps as you said on procedural grounds but still decide the case. But then the larger issue will be left open when there's a full bench. One other example that I thought I'd be interested in your reaction to it is Evenwel v. Abbott. That was argued back on December 8 as to whether or not districting has to be based on eligible voters rather than total population. Could that be another case, which would be 5-4 with Scalia in the majority and now 4-4?

[RH] Yeah I think I have to dissent from the common wisdom on this one. I know that Adam Liptak of the New York Times listed this as one of the cases that could be 5-4 that would now be 4-4. I've been much more optimistic in the sense of thinking that the plaintiff's case here should fail, that we should leave things the way they were, which is that states could choose the denominator in terms of whether they should use total population or total voters as their denominator in dividing up districts. So I don't think the case was 5-4 before and so I don't think it's going to be 4-4 now. I’d point out that Justice Scalia and I noted this on my election law blog at the time. Justice Scalia did not say a word at oral argument in the Evanwel case and it is extremely unusual for Justice Scalia to not say a word in any oral argument and he was really a force to be reckoned with and certainly the most entertaining and interesting person on the bench whether you agreed with him or not. But what you said about trying to issue narrow opinions made me think that Chief Justice Roberts’ leadership is likely to be very strongly tested here. This is a very difficult period and the question is whether he can bridge divides; he has certainly been a very competent administrator. The court gets its work done; it seems to be finally moving forward a little bit on improving its record on transparency and on making documents available. But this is a different kind of leadership and I think this will be a test for him.

[EC] I think it's in the high profile cases where I'm not sure what any leader can do. When you're dealing with issues like the ones that we've been alluding to: the First Amendment rights of nonunion members, the contraceptive mandate, abortion, immigration; there are strong feelings on both sides and the question is can anyone find a way of bridging the difference so you don't end up with 4-4 splits? It's worth mentioning affirmative action separately because in that case, justice Kagan has recused from participating so as eight justices to start with. Now many thought that the court would further narrow affirmative action by a 5-3 margin. Will the court be willing to do that by a 4-3 margin or will they decide that it’s a reason for putting the case over for a larger bench?

[RH] And as I understand it a four to three ruling would still be permissible ruling so long as the Supreme Court has a quorum, then the ruling goes forward. But maybe there's something psychological about the court deciding something as monumental as change to affirmative action without any kind of absolute majority of a full bench of the Supreme Court/

[EC] So let me ask you this: if you were to advise President Obama what would you tell him at this point?

[RH] Well I think that it would be full steam ahead on a nomination. I think that it's the president's job to nominate for vacancies and then it's the Senate's job to figure out what to do about that. Now we're not in a situation where there would be a filibuster of nomination because Republicans have a majority of the Senate. The question is whether first, Senator Grassley who is the chair of the Senate Judiciary Committee would hold a hearing on any nominee through the vetting of – this process usually takes a few months to get going. And assuming that a nominee does come out of committee, either with affirmative vote or maybe put to the floor without an affirmative vote, would Senator Mitch McConnell, the Senate majority leader hold a vote? Now I was very surprised that just hours after the public announcement of Justice Scalia's death, McConnell stated that he didn't think there should be a vote. So I think that – and many Republicans including Orrin Hatch, who has been on the judiciary committee for years and is a very thoughtful Republican leader on these, endorsed McConnell's idea of putting this way. In part, as a kind of payback for what Republicans see as the Democrats' intransigence on Republican nominees in the past. And so, I think Obama puts forward a nominee; what Republicans do is really going to depend upon the political pressure and especially the political pressure that would come to bear on those of the 24 Republican senators who are up for reelection. Those in tough races where if this becomes a salient issue, if Republicans are seen as obstructionist and not even having an up or down vote, that there might be pressure change that and allow the vote to go forward. And so, I think if Mitch McConnell sees that this is such a salient issue that he could lose his Senate majority, then we might see an up or down vote. If there is an up or down vote, just playing with that a little further, I could well see a candidate narrowly be defeated perhaps with some Republicans supporting that Obama nominee. Maybe the person gets through but if not I expect whoever that nominee is, could well be embraced by the – who will then be the Democratic nominee or presumptive front-runner at that point in time. It may be Hillary Clinton or Bernie Sanders and this person will then be the symbol. Vote for me and I will re-nominate this person to the court. I don't know if you have other thoughts about how this would go.

[EC] I largely agree if President Obama would ask my advice, which he won't, I would say don't pick a conservative or moderate conservative just to get the person through the Senate. This person is the be on the Supreme Court for several decades this is an opportunity that shouldn't be squandered. Every president looks for nominees that are consistent with the president's values. President Obama should do the same, looking for someone like Sonia Sotomayor or Elena Kagan, his prior two nominees who have his values. I think he should pick somebody of impeccable credentials; he should pick somebody who has a compelling life story; he needs to pick somebody where there's no paper trail that could be used to rally against the person; he needs to pick somebody who's admired all across the political spectrum. I think for many reasons: diversity reasons, political reasons, selecting a person of color an African-American, Asian American, Hispanic could have great benefits for the court as well as for the politics situation. And it's hard to know how it will play out until we've seen the nominee that – I understand why Mitch McConnell had took that position. There are certainly some Obama nominees where they might be quite willing to have a hearing and a vote, others where they’ll take this position. The one thing that I would add to what you said is there are a number of Republicans from swing states like from Illinois who are up for reelection in November. It will take four Republicans to join the Democrats to create a majority to approve the nominee. Now at that point, can they force a hearing? Can they force a vote? What will end up happening? We can't know so I think that the politics are going really depend on who’s selected.

[RH] Well and I think not only the question of who is selected but the timing. I think every week that Obama waits, it’s going to make it harder because then the claim that the next election decide this matter. And so, I expect we're going to see a nominee sooner rather than later which also suggests it will be someone who's recently been vetted who's either sitting on the appeals court as a presidential appointment or has somehow already familiar to senators and approved by senators. I think there’s going to be a heavy thumb on the scales of those types of nominees. And there's a lot at stake and we talked about the issues that were related to the cases that are currently before the court but let me just mention one that's not currently before the court but likely to come to the court in the next term of the term after which is campaign finance. That's one of the issues that I've been following very closely and there's a case that's working its way up from a three judge court in Washington D.C. involving part of the McCain Feingold law. You remember the McCain Feingold law passed by Congress in early 2000’s and did two things: one is it limited corporate and union money that part of the law has been struck down by the Supreme Court in the Citizens United case, very controversial case, but the other part involved party soft money. The amount of money that political parties can raise from large donors. That part was upheld by the Supreme Court in a case called McConnell v. Federal Election Commission and there's now this new challenge pending the three judge court to get that reconsidered. It's from a three judge court so it gets a direct appeal to the Supreme Court, kind of a fast ticket to the Supreme Court, so that could make it to the Supreme Court next year and the court was divided 5-4 on these issues for a very long time before there was 5-4 against regulation. It was 5-4 before regulation when Justice O'Connor was on the court rather than Justice Alito. So it could be that the future of money in politics rests on the future next justice of the Supreme Court and I’m wondering what other cases you see that could be coming in the next few years where we could potentially see a switch.

[EC] It's virtually every area of constitutional law where the court has been 5-4 with Justice Scalia in the majority, you could then see a change. Let me give a statistical perspective of this. Last year the Supreme Court decided 66 cases after briefing oral argument; 19 of the 66 were decided 5-4. In 14 of the 66 cases or 14 of the 5-4 decisions, the court was split along ideological lines with Roberts, Scalia, Thomas and Alito on one side and with Ginsburg, Breyer, Sotomayor, and Kagan on the other. Well that's 14 cases where we're replacing Justice Scalia with a liberal justice could make clear the liberal majority. I mentioned in the beginning, the Second Amendment, District of Columbia v. Heller in 2008, the first time the court ever struck down law on the base of the Second Amendment. It was 5-4 with Justice Scalia writing. For abortion, the conventional wisdom is that there are four justices who want to overrule Roe, one who will vote to uphold most regulations of abortion and four who would strike down most regulation of abortions. Justice Scalia’s replacement created a solid five justice majority to be in favor of abortion rights in reproductive freedom. My guess is the immigration issue, the president's immigration policy. There's a real chance it was going to be 5-4 against President Obama; a liberal justice made it 5-4 the other way. And maybe to end this, to put this in the larger context, I think what this is going to do is make ever more salient the Supreme Court for the November 2016 presidential election. The average age at which a justice left the court since 1960 is 79 years old. By coincidence, that’s the age which Justice Scalia passed away. We will have three other justices who are 79 or older in 2017, the year of the next presidential election. I said all along that I think the most important issue in the next presidential election is who's going to fill those vacancies in the Supreme Court. I think Justice Scalia's passing brings that very much to the fore.

[RH] And I very much agree with that and I think we should stop thinking of the replacement of Justice Scalia as a kind of hurricane that's coming through but the first in a series of storms. And even if the balance shifts 5-4 here, we get a Republican president who appoints the next few justices, it could shift right back. And then there’s the whole question which we don’t have time to talk about this time but maybe we come back and talk about which is: how much should a justice who's liberal follow a conservative president? How much should a conservative follow a liberal president just because the idea that it's upsetting to the law to have constant change in churn. I think on that note we're going to have to leave it. It's been great to have this conversation with you and I look forward to our continuing discussion of the Supreme Court nomination process.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.