JUSTICE ANTONIN SCALIA
Legacy of …
Originalism
Constructional Scholar
JUDICIAL RESTRAINT
Judicial Activism

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
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Can be from any party
Judges acting to create
new law
In Roe v. Wade, the court
acted liberally because it
changed the Texas law
The court acted
conservatively when they
changed the law New
York Law of a maximumhours law
Judicial Restraint
Can be from any party
 The court should not
decide disputes unless
there is concrete injury
to be relieved by the
decision
 Only declare a law
unconstitutional when it
violates the document
directly, not what you
interpret it to say

Justice Scalia : “A ‘living’ Constitution judge [is] a happy fellow who
comes home at night to his wife and says “The Constitution means
exactly what I thought it ought to mean!’”
ORIGINAL INTENT (ORIGINALISM) VS. LIVING
CONSTITUTION
March 23, 2010
 C-SPAN
 15:00- 25:00ish
 Justice Scalia and Justice Breyer discuss the
issue
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JUSTICE ANTONIN SCALIA
 1936-2016
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Appointed by President Reagan
(R) in 1986.
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Until his death, longest current
serving justice on the Court.
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Leading conservative on Court believed in “originalism” OR
strict interpretation (what did
the Constitution mean at the
time it was written).
Before his death, the Court was
considered to be 5-4, leaning
conservative. Although, Chief
Justice John Roberts &
Associate Justice Anthony
Kennedy (both considered in
that 5) have gone back and forth
and ruled with the perceived
liberal justices at times.
IMPORTANCE OF THAT VIEW…
Why do some people believe the Supreme Court
has too much power?
 Whose responsibility is it to choose a new justice?
 Whose responsibility is it to confirm the chosen
successor?

THE DISCUSSION
How can this appointment cement a legacy for
President Obama (D)?
 GOP argues Obama is a lame-duck and should
allow next president to choose. Is he a lameduck? If he is, should he not choose?
 Dems argue the Constitution doesn’t address
whether or not a lame-duck president should
refrain from nominating a justice, but that
whoever is POTUS has responsibility.
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GOP RESPONSE; SEN. MITCH MCCONNELL (R-KY)
DEM RESPONSE:
SEN. ELIZABETH WARREN (D-MA)
APPOINTING THE JUDICIARY
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Senate Judiciary Committee
Looks at all the President’s judicial appointments
 Sometimes (always if it is the Supreme Court)
appears before the committee to answer questions
about experience or their views on laws
 A determination of an appointee’s political status is
known as a litmus test

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Senatorial Courtesy
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When the vacancy is a Federal Court from a state,
that state’s senators often determine the nominee
SUPREME COURT VACANCIES
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Confirmation
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It became a public spectacle after the Senate rejected
Nixon’s first two nominees
Interest Groups
Witnesses testifies in the confirmation hearings
about the nominee’s qualifications
 The American Bar association (ABA) or others,
sometimes write questions for the Senate Judiciary
Committee
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CONCLUSION
Why has the death of Justice Scalia created such
political upheaval?
 Why does the GOP want the vacancy to be filled
after the next Presidential election?
 Why does the Democratic Party want the vacancy
to be filled immediately?
 Is there a right or wrong answer here or is this
just a personal, political question?
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