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4 Questions With NPR's Nina Totenberg About Justice Antonin Scalia

Supreme Court Justice Antonin Scalia in 2011.
Riccardo S. Savi
Getty Images
Supreme Court Justice Antonin Scalia in 2011.

Supreme Court Justice Antonin Scaliadied unexpectedly on Saturday. We spoke to NPR's Legal Affairs Correspondent Nina Totenberg about his life, legacy and what's next.

1. Let's talk about Scalia's legal perspective. He was known as a proponent of originalism. Can you tell us a bit about that?

Originalism, as defined by Justice Scalia and others, is that what is in the Constitution literally is what the founding fathers meant.

If you're talking about whether the death penalty in certain circumstance, or at all, is unconstitutional, the Founding Fathers thought it was constitutional because they had the death penalty then so they couldn't possibly have thought it was unconstitutional. And there's no such thing as an evolution of ideas and an evolution of society in what's cruel and unusual. He wouldn't buy that.

He believed the same thing in interpretation of statutes, that the words on the page are all that counts. That legislative history, that constitutional history, they don't count much if at all. What matters is the intent at the time. To put it most bluntly, "I mean what I say and not any more or any less."

When he joined the court, Scalia was the foremost of exponent of originalism, along with Robert Bork.

And he continued to be its foremost exponent. From being a sort of a fringe movement 30 or 40 years ago, it is now major league, perhaps the dominant philosophy — or was a dominant philosophy with his vote — on the Supreme court.

2. So will that be the core part of his legacy?

We do have to remember that he was not always predictable. He cast the fifth vote to strike down a law banning flag burning, saying that was the quintessential expression of political speech.

He wrote the most radical opinion in one of the post 9/11 terrorist cases, going against the Bush administration and saying you couldn't imprison an American without charging them and trying them.

To pigeonhole him simply as a conservative, which he was most of the time, is not to fully understand who he was.

3. Obviously his death comes in the middle of Supreme Court term. So what does that mean for cases that may be outstanding?

There are a huge number of important issues, some of which have been argued, some of which haven't.

Affirmative action has been argued. But abortion, immigration, a big religion case, some important environmental cases, they haven't been argued. Those cases will not be decided with a five to four vote, because there is not a fifth reliable conservative vote.

There are four reliable liberal votes, three reliable conservative votes, and one conservative swing vote in Justice Kennedy. What is going to happen to those? God only knows.

And what about cases Justice Scalia was already writing? The opinions he was already in charge of writing? Or cases in which there might have been a five to four vote and that it's now four to four?

The rule when there's a four-to-four decision — a tie decision — is that the lower court decision holds but has no precedential value.

In other words, it doesn't matter, it's like kissing your sister.

I don't recall an instance like this where a justice dies unexpectedly when nearly two thirds of the term is over.

Lord only knows what's going to happen.

4. What about Justice Scalia's replacement? How is the nomination process going to play out?

Mitch McConnell, the Senate majority leader, has already said he thinks it should wait until after the election. And that, it seems to me, likely will be the outcome.

President Obama can't get somebody confirmed without help from the Republican majority and they're not going to give it to him.

This will become a huge issue in the presidential campaign, something that hasn't happened before, at least in modern times.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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