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Linda Hirshman: Because I think that getting African Americans to go to the polls in sufficient numbers to elect a Democrat president of the United States is the critical political issue right now. Obama’s numbers from 2008 to 2012 went down among Hispanics and whites. And only a robust African-American vote was effective in 2012. So I’m thinking politically about this. The Republicans are looking at their red states. Arizona, for example, where I live in the winter, will be in the very liberal Ninth Circuit. They’re looking at their constituents living under the governance of very liberal blue circuits. And they are looking at a—I want them to look at the most attractive, politically attractive, possible nominee.
Juan Gonzalez:: I wanted to ask Scott Horton, with the current split in the court—we’ve got all these big cases coming up this term, have to be decided by June—what is your sense of what the fallout will be on some of these cases, if any, that the court may go ahead with?
Scott Horton: Well, I think labor unions can breathe a huge sigh of relief right now, because they were probably looking at a really powerful adverse ruling on the union dues issue coming in one major case. And one fundamental rule here is, it doesn’t matter how the justices voted in conference or the discussions that went on; the vote that’s taken has got to be the vote as it existed at the time the ruling is handed down. So, nothing that’s happened up to this point matters. We’re dealing with an eight-member court on all of these rulings.
But I think, coming back to what was—what Ian said at the beginning, we’re looking at a court that is likely simply to uphold the rulings below. So, in cases where—as in the immigration rights case and the voting rights cases coming out of Texas, where there is a conservative ruling from a conservative court of appeals, that’s likely to be sustained still, I think and where it was a more progressive ruling, that will be upheld.
Amy Goodman: Ian Millhiser, before we go to break, if you could talk about what Justice Scalia is known for, whether we’re talking about his support for gun rights, his opposition to same-sex marriage and LGBTQ rights, whether we’re talking about abortion, talk about his history, this history of—
Ian Millhiser: Sure.
Amy Goodman: —a man who was appointed by Ronald Reagan.
Ian Millhiser: Sure. I mean, I think that Justice Scalia is a very tragic figure. I mean, if you read a lot of his scholarship, he would articulate a theory of judicial restraint that I think is admirable, this notion that we should be cautious about courts getting too involved in our lives and that we are a democracy and democracy should rule. As a scholar, I think he made very interesting arguments. But as a judge, he often lacked the character or the self-control to live up to the arguments he made as a scholar.
So, you know, the two most—the two most striking examples of this are the two Obamacare cases, where in the first one he wrote a—or he joined a vicious dissent to his own opinion in another case called Raich and then, in the second one, he attacked his own theory of judicial—of statutory interpretation that he laid out in a 2012 book. So, he was a great scholar. I think—I wish that he’d been able to live up to his own ideals. But unfortunately, all too often, I think he let ideology and partisanship get in the way of some of the more idealistic notions that he articulated as a scholar.
Juan Gonzalez:: And, Scott, I’d like to ask you about the irony of Scalia being a proponent of originalism, of faithfulness to the letter of the Constitution and yet now the Republican majority saying, well, the president should not really exercise the powers that the Constitution gives him to name the next Supreme Court justice.
Scott Horton: Well, I think it is highly ironic. I mean, you know, this was a politically driven conservatism. And I think Scalia’s conservatism is unlike what we’ve seen through most of American history. He’s sort of a southern European throne-and-altar type of conservative and not the sort of more progressive conservative that embraces some liberal values we’ve seen through most of American history. And he came up with a formula that would sustain that, which was to try and freeze the country in time constitutionally at 1789, which was a framework that gave him more ballast for his arguments, but certainly didn’t help him win every case.
But I think, you know, his zeal—he undermined himself with his own zeal over and over again, you know, especially in the last few years. He would attack the majority on case after case, saying X, Y, Z is consequence of their opinion and you’ll see—and, of course, that comment was then used by district courts to sustain a more radical interpretation of the majority’s opinion and that hastened things along, like marriage equality.
Amy Goodman: We’re going to break, then come back to this discussion. I want to thank Ian Millhiser for joining us, editor of ThinkProgress Justice, author of Injustices. Linda Hirshman is staying with us, author of Sisters in Law, a very interesting book about Sandra Day O’Connor and Ruth Bader Ginsburg; the subtitle, How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. And we’re joined by Scott Horton, human rights attorney and lecturer at Columbia Law School. Kimberlé Crenshaw will now be joining us, as well, from UCLA in California. This is Democracy Now! We’re talking about the death of Justice Scalia and what happens next. Stay with us.
[break]
Amy Goodman: With Saturday’s death of Justice Antonin Scalia, the most important conservative voice on the court in decades, the nation may be heading into a constitutional crisis, Senate Republicans vowing to block President Obama from filling Justice Scalia’s seat. We’re joined by three guests. Linda Hirshman is still with us from Phoenix, Arizona, lawyer and historian, author of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. We’re joined here in New York by Scott Horton, human rights attorney and contributing editor at Harper’s Magazine, a lecturer at Columbia Law School. In a moment, we’ll be joined by Kimberlé Crenshaw, professor of law at UCLA and Columbia University. We’re going to turn, though, to Scott Horton.
Juan Gonzalez:: Scott, I wanted to ask you about Scalia’s last decision, which was on a clean power case last Tuesday. He was the decisive vote on that, as well. Could you talk about that?
Scott Horton: Well, I think it’s clear right now that that injunction that was issued by the Supreme Court would not have been—wouldn’t be issued today. His vote was essential to get it over the hump. And that was a radical move. There is really no precedent for the Supreme Court issuing an injunction staying pending argument in the Supreme Court regulations of general applicability of this sort.
Amy Goodman: But just to be clear, this was—struck down regulations of coal-powered plants, which was really the centerpiece of what—on the U.S. position at the UN climate summit in Paris.
Scott Horton: Precisely. And, in fact, I think this decision got more attention overseas than it got in the United States, because we saw a number of European nations focused on the fact that it looked like the Supreme Court was going to block United States’ implementation of the Paris Accords, because these regulations were right at the core of it. And now there clearly is not the majority within the Supreme Court in support of that injunction. But we’re going to have to see—either there will have to be a motion for rehearing of the matter by the solicitor general or we’ll have to await the final decision. But it’s no longer as clear that the situation is ominous for Barack Obama on these regulations.
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