tag:theconversation.com,2011:/global/topics/after-scalia-24782/articlesAfter Scalia – The Conversation2021-11-04T21:14:11Ztag:theconversation.com,2011:article/1712632021-11-04T21:14:11Z2021-11-04T21:14:11ZSupreme Court appears to suggest right to guns at home extends to carrying them in public too<figure><img src="https://images.theconversation.com/files/430307/original/file-20211104-25-weax5m.jpg?ixlib=rb-1.1.0&rect=6%2C0%2C4069%2C2719&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of gun controls rally outside the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supporters-of-gun-control-hold-signs-in-front-of-supporters-news-photo/1351091020?adppopup=true">Joshua Roberts/Getty Images</a></span></figcaption></figure><p>Faced with the question “does the constitutional right to possess a gun extend outside the home?” the majority of the Supreme Court appears to be heading toward the answer “yes.”</p>
<p>On Nov. 3, 2012, justices heard oral arguments over New York’s restrictions on the carrying of firearms in public. <a href="https://www.scotusblog.com/2021/11/majority-of-court-appears-dubious-of-new-york-gun-control-law-but-justices-mull-narrow-ruling/">Supreme Court watchers</a> <a href="https://www.washingtonpost.com/politics/courts_law/gun-rights-case-supreme-court/2021/11/03/6b9a75d8-3c13-11ec-a493-51b0252dea0c_story.html">reported that</a> conservative justices – who make up the bulk of the court – <a href="https://www.nytimes.com/2021/11/03/us/politics/supreme-court-guns-second-amendment.html">appeared to be of the view</a> that the state’s laws contravene individuals’ right to self-defense outside of their own property.</p>
<p>“Why isn’t it good enough to say I live in a violent area, and I want to be able to defend myself?” Justice <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=71">Brett Kavanaugh wondered</a>.</p>
<p>The nine-member panel is far from the first to ponder such questions. The crux of the <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">issue before the Supreme Court</a> is captured by a debate that Thomas Jefferson had with himself at the time of the founding.</p>
<p>When Jefferson was drafting a proposed constitution for his home state of Virginia in June 1776, he <a href="https://www.monticello.org/site/research-and-collections/no-freeman-shall-be-debarred-use-arms#footnote3_h70lbu1">suggested a clause</a> that read “No freeman shall ever be debarred the use of arms.” </p>
<p>In the second draft, he added in brackets, “[within his own lands or tenements].”</p>
<p>Jefferson’s debate with himself captures the question posed to the court: Is the purpose of the right to “keep and bear arms” the protection of a citizen’s “own lands,” or is it self-protection in general? Does the Second Amendment to the U.S. Constitution recognize a right to keep and bear arms in the home, or a right to “keep” firearms in the home and also “bear” them outside of the home for protection in society? </p>
<p>The plaintiffs in the case currently before the justices, <a href="https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/">New York Rifle & Pistol Association v. Bruen</a>, want the court to strike down the state’s restrictions and allow citizens who meet basic requirements, such as having no criminal convictions, to carry concealed weapons.</p>
<figure class="align-center ">
<img alt="A man with a tattoo that reads 'We the People' carrying a gun in a leather holster" src="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&rect=22%2C9%2C3035%2C1894&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=378&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=378&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=378&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=475&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=475&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428615/original/file-20211026-17-1bf0g26.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=475&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Will an upcoming Supreme Court ruling loosen gun laws across the country?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Texas-Handguns/a65f863ca87e4b59b68b98d8db568bc1/photo?Query=guns%20open%20carry&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=280&currentItemNo=5">AP Photo/Eric Gay</a></span>
</figcaption>
</figure>
<h2>Gun in the house</h2>
<p>There are surprisingly few <a href="https://theconversation.com/first-major-second-amendment-case-before-the-supreme-court-in-over-a-decade-could-topple-gun-restrictions-166703">Supreme Court rulings</a> on the meaning of the Second Amendment. </p>
<p>The question of whether the amendment recognizes a fundamental right – on par with free speech or free exercise of religion – was not decided until 2008 in the landmark ruling in <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf">District of Columbia v. Heller</a>. For the first time, the court recognized a clear individual right to bear arms for the purpose of self-defense. This <a href="http://content.time.com/time/specials/packages/article/0,28804,2036448_2036452_2036455,00.html">deeply disputed 5-4 ruling</a> was expanded <a href="https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf">two years later to cover state laws</a>.</p>
<p>The Heller ruling stated that the Second Amendment’s right is like the others in the <a href="https://www.archives.gov/founding-docs/bill-of-rights-transcript">Bill of Rights</a>, which cannot be violated without the most compelling reasons. The amendment, the ruling says, “surely <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=66">elevates above all other interests</a> the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The Washington, D.C., law intended to reduce crime cannot ban firearms in “<a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=59">the home</a>, where the need for defense of self, family, and property is most acute.”</p>
<p>That ruling – written by Justice Antonin Scalia, who died in 2016 and was <a href="https://www.npr.org/2017/04/07/522902281/senate-confirms-gorsuch-to-supreme-court">replaced by Justice Neil Gorsuch</a> – also recognized that “like most rights, the right secured by the Second Amendment is <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=57">not unlimited</a>.” Scalia cited regulations like “longstanding prohibitions on the possession of firearms by felons and the mentally ill” or “prohibitions on carrying concealed weapons” as “presumptively lawful.”</p>
<p>The principal dissent was written by Justice Stephen Breyer, the only dissenter in Heller still serving on the court. He emphasized the balance between core rights and the needs for public safety. </p>
<p>“If a resident has a <a href="https://www.supremecourt.gov/opinions/07pdf/07-290.pdf#page=146">handgun in the home</a> that he can use for self-defense,” wrote Breyer, “then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.”</p>
<p>During oral arguments in the current case before the Supreme Court, Breyer <a href="https://www.washingtonpost.com/politics/courts_law/gun-rights-case-supreme-court/2021/11/03/6b9a75d8-3c13-11ec-a493-51b0252dea0c_story.html">expressed concern over loosening restrictions</a>, <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=36">suggesting there were legitimate concern</a> over “gun-related chaos” resulting from having more guns in public places.</p>
<h2>Concealed carry laws</h2>
<p>State governments follow very different procedures for determining who will be allowed to carry a concealed firearm outside of the home. </p>
<p>“<a href="https://worldpopulationreview.com/state-rankings/open-carry-states">Open carry</a>,” or just having a handgun in plain sight on a belt holster or carrying a long gun (rifle or shotgun), is actually legal in many places. The general idea is that carrying openly would be done only by an honest actor, so less regulation is needed. “Concealed carry,” having a hidden weapon in a pocket or under a jacket, is far more restricted. </p>
<p>At one end of the continuum are near-bans on what are called “concealed carry licenses,” while at the other end are states in which no license is needed. These laws are referred to as “<a href="https://www.cnn.com/2021/09/01/us/texas-open-carry-laws/index.html">constitutional carry</a>,” meaning the U.S. Constitution itself is a citizen’s <a href="https://concealedguns.procon.org/state-by-state-concealed-carry-permit-laws/">license to carry</a> a firearm. </p>
<p>In between these two positions are rules known as “shall issue,” whereby the government issues a license if the applicant meets the requirements such as having no felony convictions, or “may issue,” which gives the government discretion to deny a license based on perceptions of fitness.</p>
<p>New York state has “may issue” laws with <a href="https://codes.findlaw.com/ny/penal-law/pen-sect-400-00.html">stringent requirements</a>, which in practice allow almost no licenses to be issued. Applicants must demonstrate a “<a href="https://sheriff.ongov.net/wp-content/uploads/2016/06/propercauseforconcealedcarry.pdf">proper cause</a>” – such as being in imminent danger from a known source – which effectively eliminates ordinary applicants. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A head-and-shoulders photo of the late Supreme Court Justice Antonin Scalia." src="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/428630/original/file-20211026-13-wtp6pi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The 2008 Heller ruling, written by Justice Antonin Scalia, pictured here, stated that the Second Amendment is a right like the others in the Bill of Rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-antonin-scalia-testifies-news-photo/100024252?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Regulation or eradication</h2>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/164031/20201217110211298_2020-12-17%20NRA-Corlett%20Cert%20Petition%20FINAL.pdf">gun owners’ brief</a> to the Supreme Court relates to New York’s insistence that citizens show an exceptional or extraordinary need to exercise a right that the court has recognized as fundamental.</p>
<p>No other fundamental right, such as freedom of speech or religion, is limited to people who can demonstrate special circumstances. Instead, fundamental rights are understood to be held by ordinary people in ordinary circumstances.</p>
<p>As Chief Justice John Roberts <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=94">asked during oral arguments</a> on Nov. 3: “You don’t have to say, when you’re looking for a permit to speak on a street corner or whatever, that your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”</p>
<p>The strongest argument in the <a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf">opposing brief</a> from the New York State Police is federalism – the long-standing conservative argument that state lawmakers hold wide latitude to determine their own regulations to serve as “<a href="https://www.supremecourt.gov/DocketPDF/20/20-843/169604/20210222170827872_20-843_Brief%20in%20Opposition.pdf#page=33">laboratories of experimentation</a>,” as Justice Louis Brandeis <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep285/usrep285262/usrep285262.pdf#page=50">phrased it</a> in 1932. The federalist principle suggests that the court should defer to the judgment of state legislatures representing the needs of local citizens.</p>
<p>On Nov. 3, Justice Sonia Sotomayor, one of the most liberal justices on the court, immediately <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_8n5a.pdf#page=19">challenged</a> the plaintiff’s advocate about the role of federalism: “Before recent times, there were so many different regulations. What it appears to me in the history and tradition of carrying weapons is that states get a lot of deference on this.”</p>
<p>As a <a href="https://doi.org/10.1007/978-3-030-53851-4">close observer of the Supreme Court</a>, I believe the justices’ reactions to the arguments suggest an outcome to the case in which the majority rules that a state can limit but not eliminate the core purposes of the protected right.</p>
<p>The Heller decision identifies at least one purpose as self-defense. The question is whether a specific concealed carry law creates a burden so strong that it becomes equivalent to eradication of the right to self-protection, or whether it imposes a legitimate public safety regulation that still maintains the core right for citizens who assert it.</p>
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<h2>Individual rights vs. fellow citizens</h2>
<p>The most permissive laws that allow unrestricted concealed carry are almost certainly not mandated by the Constitution.</p>
<p>“Shall issue” laws, which allow states to screen applicants for flaws but compel local governments to provide a concealed carry license to qualified citizens, are likely to be seen even by the conservative justices as legitimate regulations that do not create unconstitutional burdens. </p>
<p>However, the current court appears to be viewing a “may issue” law like New York’s, which allows the government to deny a license to nearly every applicant, as creating a burden that blocks the core of the right to self-protection where ordinary citizens are exposed to greater threats – outside the home.</p>
<p><em>Editor’s note: This article is an <a href="https://theconversation.com/gun-rights-at-the-supreme-court-justices-will-consider-if-the-fundamental-right-to-keep-a-gun-at-home-applies-to-carrying-weapons-in-public-169235">updated version of a story</a> that was published on Nov. 1, 2021.</em></p><img src="https://counter.theconversation.com/content/171263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court ruled in 2008 that you have a constitutional right to have a gun in your home. Now, the justices will consider how far outside of the home that right extends.Morgan Marietta, Associate Professor of Political Science, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/564162016-03-30T10:14:45Z2016-03-30T10:14:45ZHow the Supreme Court made economic inequality a whole lot worse<figure><img src="https://images.theconversation.com/files/116696/original/image-20160329-13683-dg34t0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lady Justice may not be blind after all.</span> <span class="attribution"><span class="source">Lady Justice via www.shutterstock.com</span></span></figcaption></figure><p>Economic inequality is now firmly on the public agenda as candidates and voters alike look for someone to blame for stagnant wages, entrenched poverty and a widening gap between rich and poor. </p>
<p>Bernie Sanders <a href="https://berniesanders.com/issues/income-and-wealth-inequality/">blames Wall Street</a>. Donald Trump <a href="http://www.ibtimes.com/donald-trump-accuses-china-india-vietnam-mexico-poaching-american-jobs-2320969">points his finger</a> at companies moving overseas. Hillary Clinton <a href="https://www.hillaryclinton.com/issues/plan-raise-american-incomes/">identifies middle-class families who are working harder but staying in place</a> as the root cause. </p>
<p>While all these factors and others helped increase inequality, they overlook the role of a key American institution that has also helped widen the gap between rich and poor: the Supreme Court.</p>
<p>As my <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2425296">research on economic inequality</a> explains, since the late 1970s and more frequently over the past decade, the court has issued a series of rulings that have benefited businesses and the wealthy at the expense of the working class and the groups that support them. This has, arguably, made it a court for the one percent. </p>
<p>The new court vacancy created by the death of Justice Antonin Scalia, however, provides an opportunity to balance – or further tilt – the economic scales. While <a href="http://www.latimes.com/opinion/editorials/la-ed-garland-scotus-20160317-story.html">Republicans have refused</a> to even consider an Obama appointment to fill his seat, we’re already seeing an example of why balancing those scales is so important. </p>
<p>At the Supreme Court on Tuesday, the <a href="http://www.nytimes.com/2016/03/30/us/politics/friedrichs-v-california-teachers-association-union-fees-supreme-court-ruling.html?action=click&pgtype=Homepage&viewport=desktop-large&module=column-2&region=top-news&contentIndexValue=0&subIndexValue=0&feedIndexValue=0&groupKick=true&summary=true&comments=true&_r=0">eight remaining justices deadlocked</a> 4-4 over whether public employee unions could require nonmembers to pay dues for the work they do negotiating on their behalf. A tie means the last lower court ruling stands, and unions – which have helped reduce inequality – can breath a sigh of relief, for now.</p>
<p>Is this the beginning of a return to a “court for all”? Or will it revert to one that coincided with three decades of worsening economic inequality? </p>
<h2>Eroding the American Dream</h2>
<p><a href="http://occupywallst.org">Occupy Wall Street</a> brought the issue of economic inequality to the fore in 2011, but since then everyone from <a href="https://www.washingtonpost.com/blogs/plum-line/wp/2013/12/04/inequality-is-the-defining-issue-of-our-time/">President Obama</a> and <a href="http://www.cbc.ca/news/business/janet-yellen-says-income-inequality-threatens-american-values-1.2802703">Fed Chair Janet Yellen</a> to <a href="https://www.washingtonpost.com/business/economy/pope-francis-denounces-trickle-down-economic-theories-in-critique-of-inequality/2013/11/26/e17ffe4e-56b6-11e3-8304-caf30787c0a9_story.html">the pope</a> has highlighted it as a serious problem. Even <a href="http://www.forbes.com/sites/eriksherman/2014/09/09/business-leaders-worry-about-income-inequality-and-revolution/">corporate America has sounded the alarm</a>, concerned that falling incomes will hurt profits. </p>
<p>Currently, the top one percent <a href="http://eml.berkeley.edu/%7Esaez/SaezZucman2016QJE.pdf">earns 20 percent of the nation’s income</a> while holding almost 40 percent of its wealth – <a href="http://www.cbpp.org/research/poverty-and-inequality/a-guide-to-statistics-on-historical-trends-in-income-inequality">that’s worse than during the “roaring twenties,”</a> when income was concentrated in the hands of wealthy industrialists. Meanwhile, <a href="http://www.epi.org/publication/understanding-the-historic-divergence-between-productivity-and-a-typical-workers-pay-why-it-matters-and-why-its-real/">worker productivity has risen 64 percent</a> since 1979, yet middle-income workers earn no more today than they did during the last days of disco. </p>
<p>Simply put, the widening divide between the haves and have-nots is undermining the American dream. </p>
<p>And the Roberts Court – named after Chief Justice John Roberts, who took the helm in 2005 – deserves at least some of the blame. </p>
<p>A <a href="http://www.minnesotalawreview.org/articles/volume-97-lead-piece-business-fares-supreme-court/">study</a> coauthored by conservative federal appeals judge Richard Posner shows that this is the most pro-business court since the Second World War. Indeed, the current court’s four conservative justices, along with the late Justice Scalia, make the top 10 list of the most business friendly justices to serve since that time. </p>
<p>If the fortunes of workers and consumers rose with that of business, this bias might not matter. But that is not the case. </p>
<h2>More arbitration, less bargaining, lower wages</h2>
<p>Justice Scalia, who had been on the court since 1986, <a href="http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=0">authored five opinions</a> that push workers and consumers out of court and into costly and ineffective arbitration. </p>
<p>For instance, in the <a href="http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/">2011 case AT&T v. Concepcion</a>, consumers filed a class action lawsuit after they were charged over US$30 for a supposedly free cell phone. Scalia authored the 5-4 majority opinion in overturning a state law that allowed consumers to join a class-wide arbitration. In dissent, <a href="http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1820&context=facpub">Justice Stephen Breyer explained</a> how the case is the deathknell for such small claims because most consumers do not have the knowledge or resources to arbitrate on their own. </p>
<p>Scalia’s antipathy toward class actions is also evident in his <a href="http://www.scotusblog.com/case-files/cases/wal-mart-v-dukes/">5-4 majority opinion in Wal-Mart v. Dukes</a>. There, he held that women workers of Wal-Mart could not bring a class action against the retailer for paying and promoting them less than men. Wal-Mart, he argued, <a href="https://www.propublica.org/article/the-impact-and-echoes-of-the-wal-mart-discrimination-case">was simply too big to discriminate</a> and could be trusted to be fair. </p>
<p>In these cases and others, Scalia handed businesses the ability to insulate themselves from liability. This leaves employees and consumers without the tools to challenge abusive practices that can depress wages and lead to economic losses. </p>
<p>The Supreme Court has also, I would argue, reinforced three decades of <a href="https://theconversation.com/america-doesnt-just-need-a-raise-we-need-a-new-national-norm-for-wage-growth-46831">wage stagnation</a> by denying workers the tools to improve their conditions and pay. </p>
<p>One way it has done this is by clobbering unions, which back in the 1970s represented a quarter of all workers. Now it’s just 7 percent, despite the evidence they <a href="http://www.epi.org/publication/benefits-of-collective-bargaining/">bring benefits to workers</a>, such as the union wage premium of 13.6 percent and improved odds of health insurance and pensions. </p>
<p>Another is in Harris v. Quinn, in which the court ruled that home health care workers did not have to pay dues to unions for representation in collective bargaining. By <a href="http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf">reducing their resources</a>, the court limited the ability of unions to improve working conditions for these low-wage workers. As Justice Elena Kagan stated in dissent, collective bargaining had helped Illinois’ home health care workers double their wages, achieve safer workplaces and obtain health insurance. </p>
<p>Without meaningful collective bargaining, these hard-fought gains by a historically disadvantaged and vulnerable group of mostly female workers <a href="http://prospect.org/article/what-happens-when-person-taking-care-your-mom-can%E2%80%99t-earn-living-wage">may be lost</a>. </p>
<h2>A court in the balance</h2>
<p>The union case decided on Tuesday is a perfect example of the power of a single justice to reshape the court’s impact. </p>
<p>When the <a href="http://www.theatlantic.com/politics/archive/2016/01/will-the-supreme-court-gut-public-employee-unions/423666/">justices heard oral arguments</a> in the closely watched case of <a href="https://www.google.com/search?client=safari&rls=en&q=Friedrichs+v.+California+Teachers+Association&ie=UTF-8&oe=UTF-8">Friedrichs v. California Teachers Association</a> in January, Scalia and his four conservative colleagues signaled that they would strike down collective bargaining laws making fees compulsory for public employees. </p>
<p>Public unions were preparing for a significant blow to their power. If these laws (which exist in 23 states) were invalidated, union resources would be sapped, thus hobbling their ability to advocate on behalf of workers. </p>
<p>Scalia’s absence changed the outcome significantly (though 4-4 rulings can’t set precedents like majority ones). Given the current fissures in the court’s makeup, the next justice may well have the power to shape key features of our economy and its workers’ lives in the future. </p>
<h2>Political meddling</h2>
<p>Of course, Supreme Court rulings alone didn’t cause economic inequality. Inequality is primarily driven by economic trends that <a href="http://www.slate.com/articles/news_and_politics/the_great_divergence/features/2010/the_united_states_of_inequality/the_stinking_rich_and_the_great_divergence.html">benefit the one percent</a>, and government policies with regard to tax, labor, finance and corporate compensation all fuel this divergence.</p>
<p>The Supreme Court plays a role in this domain as well. We may think of the court as apolitical, but the truth is that the justices shape politics in many ways. </p>
<p>In 2010, in <a href="http://www.supremecourt.gov/opinions/09pdf/08-205.pdf">Citizens United v. FEC</a>, the court overturned decades of precedent and dismantled Congress’s attempt to rein in corporate political spending and as a result amplified the political voices of the rich.<br>
<a href="http://www.princeton.edu/%7Ebartels/economic.pdf">Scholars have already established</a> that Congress is more responsive to the desires of the wealthy than the less affluent. Citizens United reinforces this trend. Escalating campaign expenditures feed political polarization, as a small group of extremely wealthy contributors can focus their funds on politicians who support their ideology.</p>
<p>Citizens United and its progeny have led to a <a href="https://www.washingtonpost.com/news/the-fix/wp/2014/01/21/how-citizens-united-changed-politics-in-6-charts">flood of outside spending</a> on elections and a rise in <a href="http://www.nytimes.com/2015/06/03/us/politics/poll-shows-americans-favor-overhaul-of-campaign-financing.html">American cynicism</a> about the political process. Prior to Citizens United, there was no such thing as a super PAC. Since 2010, as the Brennan Center reports, <a href="http://www.brennancenter.org/analysis/democracy-agenda-money-politics#_ftn1">super PACs have spent $1 billion</a> on political campaigns, 60 percent of which was generated from just 195 donors.</p>
<p>Meanwhile, the court has squashed the political voices of the poor and working class. The court has upheld onerous but useless voter identification laws (<a href="http://www.supremecourt.gov/opinions/07pdf/07-21.pdf">Crawford v. Marion County</a>) and struck down sections of the Voting Rights Act that previously led to increases in minority voting and the numbers of minority elected officials (<a href="http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf">Shelby County, Alabama v. Holder</a>). </p>
<h2>When companies became people</h2>
<p>Overall, a pattern emerges. By <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1805932">giving corporations</a> the <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1732910">rights of people</a>, this court has ruled that corporations can hold religious beliefs and make unlimited campaign contributions as a matter of free speech. At the same time, workers and consumers and voters – actual human people – are losing rights. </p>
<p>Further, the court is stripping them of the tools that can level the playing field, such as class actions, access to the courts, union organizing and fair election laws. In short, the court is crushing collective action.</p>
<p>The coalescing of power at the top compounds economic inequality, as the wealthy amass disproportionate influence over lawmakers and the funds to develop litigation strategies that favor their interests.</p>
<p>This wasn’t always the case. During the postwar era to the late 1970s, America had shared prosperity, largely as a result of government policies such as the GI bill (which sent vets to college), a progressive tax system and a strong labor movement. Thirty years ago, the <a href="http://www.motherjones.com/files/images/top_1percent_share_of_income.png">top one percent earned 12 percent</a> of the nation’s income. Today, that number is about 21 percent.</p>
<p>A popular conception of the Supreme Court is that it is designed to protect vulnerable minorities from majoritarian rule. Instead, the court of recent memory has enhanced a powerful minority at the expense of the majority.</p>
<p>I believe we currently have a court for the one percent. The next justice will hold the deciding vote in making it a court for all.</p><img src="https://counter.theconversation.com/content/56416/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michele Gilman is member of the Committee on Litigation and Legal Priorities of the ACLU of Maryland and the Judicial Selection Committee of the Women's Law Center of Maryland. </span></em></p>The late Antonin Scalia and his conservative colleagues in recent years have rolled back protections for workers and unions while giving more rights to businesses and the wealthy.Michele Gilman, Venable Professor of Law, University of BaltimoreLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550152016-03-14T10:06:27Z2016-03-14T10:06:27ZWhy we have the most polarized Supreme Court in history<p>The unexpected passing of Justice Antonin Scalia has had and will have enormous ramifications across the American polity. </p>
<p>Prior to his passing on February 13, hardly a word was mentioned about the Supreme Court in any of the presidential debates. In contrast, subsequent <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/02/25/the-cnntelemundo-republican-debate-transcript-annotated/">debates</a> mentioned the words “court” or “justice” more than 20 times. </p>
<p>And barely an hour after Scalia’s passing, Senate Majority Leader Mitch McConnell declared that no replacement should be named until after the 2016 election. </p>
<p>As to the court itself, the impacts of Scalia’s passing could be significant, including a reprieve for affirmative action (Fisher v. Texas), an inability to prohibit mandatory union dues by public employees (Friedrichs v. California Teachers’ Association) and greater leeway under the Second Amendment to regulate guns (Voisine v. United States). </p>
<p>In fact, if a Democratic president gets to appoint the next justice, the doctrine that the Second Amendment provides an individual right to bear arms, and not just a right of state militias (United States v. Heller), could fall, as could the doctrine that campaign contributions by individuals and corporations are a form of speech protected by the First Amendment. </p>
<p>My confidence in this assertion is based on the fact that in recent times, unlike any time in our history, we are unlikely to see conservative Democrats or liberal Republicans on the Supreme Court. </p>
<p>That’s because the Supreme Court is more polarized politically than it’s ever been. If historical trends continue, the next Supreme Court justice will not be a moderate, but a person with strong ideological views.</p>
<h2>Different times</h2>
<p>For the first time in the Supreme Court’s history, every Republican on the court is to the right of every Democrat, as measured by the <a href="http://mqscores.berkeley.edu/">Martin-Quinn score</a>.</p>
<p>I submit that at least part of the reason for this polarization on the court is the polarization in the Senate.</p>
<p>Because justices are nominated by the president and confirmed by the Senate, the impact of party on the choice of justices should roughly reflect the amount of partisan division at the time of the justices’ appointment. And indeed, we have seen this in decades past.</p>
<p>For example, the 94th Senate confirmed John Paul Stevens, a liberal Republican, at a time when there were many liberal Republicans in the Senate, such as Jacob Javits (New York) and Edward Brooke (Massachusetts). </p>
<p>Similarly, the 92nd Senate confirmed Lewis Powell, a conservative Democrat, at a time when conservative Democrats such as John Stennis and James Eastland (both Mississippi) were fairly common. </p>
<p>Given <a href="http://poq.oxfordjournals.org/content/75/4/812.short">growing party polarization in Congress over the last 30 years</a>, we should also expect a relatively tighter fit between party and voting behavior on the court in 2010 than we would find in 1994. But has that actually been the case? </p>
<h2>Spreading partisanship</h2>
<p>Consider the following evidence. I start by examining the overlap between partisanship in the 98th Senate (1983-84) and the justices serving 10 years later – that is, the 1994 term of the court. With new appointments every few years a polarized Senate would not have an immediate effect on the court, but over time the impact would grow.</p>
<p>As the graph below shows, there was a fair amount of overlap in partisanship in the 98th Senate as represented by <a href="http://blogs.iq.harvard.edu/sss/archives/2005/10/ideal_points_1.shtml">ideal points</a>, a common way to measure political leanings. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113640/original/image-20160302-25866-1fv0fi3.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Figure 1: Ideal points (liberal to conservative) by party 98th Senate with Republican senators in black, Democratic senators in white.</span>
</figcaption>
</figure>
<p>Ten years later, we find, based on <a href="http://mqscores.berkeley.edu/">commonly used ideology scores of the justices</a>, Republican Justice John Paul Stevens to be the most liberal member of the court, while Republican Justice David Souter falls to the left of Democratic Justice Stephen Breyer.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113641/original/image-20160302-25897-10p52ev.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Figure 2. Ideal points (liberal to conservative) of the justices by party, 1994 term. Legend: nominees by Republican presidents in CAPS.</span>
<span class="attribution"><span class="source">Andrew Martin and Kevin Quinn</span></span>
</figcaption>
</figure>
<p>Then I look at the partisanship in the 107th Senate (2001-03) and the justices serving on the 2010-11 term. By the 107th Senate, we observe far less overlap between Republicans and Democrats. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=436&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=436&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=436&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=548&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=548&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113642/original/image-20160302-25869-119av96.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=548&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ideal points (liberal to conservative) by party, 107th Senate with Republican senators in black, Democratic sSenators in white.</span>
</figcaption>
</figure>
<p>The increasing homogeneity of the Republican Party since the 1980s, combined with the battle cry “<a href="http://www.wsj.com/articles/SB112173866457289093">No More Souters</a>,” should make it increasingly difficult for a Republican president to nominate a Supreme Court justice who overlaps ideologically with Democratic justices. </p>
<p>Has this happened? While Harriet Miers’ lack of qualifications no doubt hurt her chances for confirmation, her failure was certainly aided and abetted by conservatives who were not certain about her ideological purity, given her ambiguous statements about abortion rights as well as her past political contributions to Democrats Albert Gore and Lloyd Bentsen. In fact, conservative commentator Charles Krauthammer <a href="http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468.html">laid out her eventual exit strategy</a>. (She eventually withdrew her nomination.)</p>
<p>To a lesser extent, liberal Democrats vocally expressed some dissatisfaction that President Obama’s choice to replace Justice Stevens, Elena Kagan, was <a href="http://www.nytimes.com/2010/05/11/us/politics/11nominees.html">not sufficiently liberal</a>. While Democrats had no intention of voting against Kagan, the carping about her nomination was certainly a signal from liberal Democrats to President Obama to resist further movement toward the political center in future nominations. </p>
<p>The make-up of today’s court does indeed reflect a partisan legislature. Ten years after the 107th Senate, and given Justice Stevens’ retirement, we no longer observe any overlap between Republicans and Democrats on the court, as seen in the chart below. The five Republicans on the court (in CAPS) place above the four Democrats.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=437&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=437&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=437&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=549&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=549&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113643/original/image-20160302-25918-nw6k64.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=549&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Ideal points (liberal to conservative) of the justices, 2010 term, with nominees by Republican presidents in CAPS.</span>
<span class="attribution"><span class="source">Andrew Martin and Kevin Quinn</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>To be sure, this complete segregation by party exists only because of the retirement of Justice Stevens in 2010. But Justice Stevens, from the moderate wing of the Republican Party, was appointed at a time when there were many moderates and even some liberals in the Republican Party. </p>
<p>My model of course cannot predict how long partisan-ideological aberrations such as Stevens will remain on the court. But as long as the partisan-ideological stance of the Senate remains, the Supreme Court will continue, with a certain time lag, to gain justices on either ends of the partisan spectrum.</p><img src="https://counter.theconversation.com/content/55015/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Segal receives funding from National Science Foundation. </span></em></p>You’re not imagining it: the Supreme Court has gotten more polarized politically than in years past, thanks to fewer moderates in the Senate.Jeffrey Segal, Professor of Political Science, Stony Brook University (The State University of New York)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/556782016-03-03T17:25:56Z2016-03-03T17:25:56ZSupreme Court sides with EPA on cleaning Chesapeake Bay – and perhaps other waterways<figure><img src="https://images.theconversation.com/files/113595/original/image-20160302-25908-twz5lh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fertilizer runoff and other activities have 60 percent of Chesapeake Bay in a virtual dead zone.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/29388462@N06/5533227582/in/photolist-9qXeMy-dXJqvg-nuy2qx-dXQ3Y5-dY76cu-pzynuk-nEYk9h-nGLPyz-fEEi9i-8SbdVA-9qUeTi-pzjWR9-9C3vgM-nWQMyt-oWefEu-8XBPhB-nEMDwj-8XEXRC-nEGNPM-dXQ5b3-9grQgn-9EC2Dg-dXJpsB-9EC1Kg-nF12Hn-dXJqJc-qeKNBE-oJYbAi-ekVB5e-93RmN4-dXJpj6-8S85ZH-dRn1Uv-9EEFho-bmEw9H-o2qcpz-pQV7KS-aByww2-crs2um-8RMusv-mY8gjH-wwysHm-shY36x-4URPgA-BCzfSJ-o4YwZ3-og6p9u-7TLtXW-7ScPCo-nKdNgr">Chesapeake Bay Program</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>In one of the earliest signs of how a divided Supreme Court will deal with environmental cases in the post-Scalia era, the court on February 29 handed the Environmental Protection Agency (EPA) a victory over farming interests in a multistate effort to restore the Chesapeake Bay. </p>
<p>The court declined to hear the case filed by industry group the American Farm Bureau Federation, which was joined by 22 states, which challenged the EPA’s plan to clean up the Chesapeake Bay’s waters. </p>
<p>The case not only reflects how a split post-Scalia court could operate in the months ahead but also raises the question as to whether the EPA could move to clean other polluted, multistate waterways. </p>
<h2>Tough times for the Chesapeake</h2>
<p>The Chesapeake Bay is the largest estuary in the U.S. and was once one of the most productive fisheries in the world. Today, however, it is choking to death from polluted runoff containing excessive amounts of sediment, nitrogen and phosphorous. Over 60 percent of the bay is a virtual <a href="http://www.cbf.org/about-the-bay/issues/dead-zones">dead zone</a> with insufficient oxygen to support aquatic life.</p>
<p>The largest <a href="http://www.chesapeakebay.net/blog/post/question_of_the_week_what_are_the_main_sources_of_pollution_to_the_bay">source of pollution</a> to the Chesapeake Bay comes from agricultural runoff, which contributes roughly 40 percent of the nitrogen and 50 percent of the phosphorus entering the water.</p>
<p>EPA’s plan, called the <a href="http://www.epa.gov/chesapeake-bay-tmdl">Chesapeake Bay Clean Water Blueprint</a>, establishes a “total maximum daily load” (TMDL) for how much nitrogen, phosphorus and sediment can enter the bay each year. </p>
<p>A TMDL is essentially a pollution diet – how much of a given pollutant a water body can absorb before violating water quality standards designed to protect aquatic life and various economic and recreational uses. </p>
<p>The goal of the Bay Blueprint is to cut this pollution by 20-25 percent by 2025. A <a href="http://www.cbf.org/economicbenefits">peer-reviewed report</a> published by the conservation group the Chesapeake Bay Foundation last October found that, in addition to the environmental benefits of the TMDL, the cleanup plan would also result in billions of dollars in economic benefits for the region from protecting property from flooding, recreation, and more productive farms and waters. </p>
<h2>‘Enough play in the joints’</h2>
<p>A central issue in the case turned on the meaning of the word “total” in TMDL. This is the kind of issue the late Justice Scalia <a href="https://theconversation.com/what-scalias-death-means-for-environment-and-climate-54797">would have relished</a>. </p>
<p>Channeling Scalia’s “textualist” approach to statutory interpretation, the Farm Bureau argued before a lower court that a TMDL is nothing more than a number – so many parts per million of this or that pollutant – covering the entire Chesapeake Bay, rather than a mandate to actually address the causes of the pollution. </p>
<p>EPA, on the other hand, took the position that Congress intended the TMDL to be more than a calculator; that it actually intended it to be used as a tool to tie together pollution issues in a manner that addresses the whole health of the water.</p>
<p>Accordingly, EPA developed a <a href="http://www.epa.gov/chesapeake-bay-tmdl">plan</a> that allocated responsibility for pollution reduction among various sectors, set timetables for action and provided market-based options for states to use if they wished. It established an ongoing collaborative process to address problems as they arose and required states provide “reasonable assurances” that the targets would be achieved and water quality would eventually be restored.</p>
<p>The case went to the Third Circuit Court of Appeals which <a href="http://www2.ca3.uscourts.gov/opinarch/134079p.pdf">upheld EPA’s approach</a> as a valid exercise of the discretion Congress had given it. </p>
<p>The Third Circuit <a href="http://www.scotusblog.com/wp-content/uploads/2016/01/134079p.pdf">found</a> that Congress had left a gap for EPA to fill in regulating clean water. It noted that the Clean Water Act supports the idea that TMDLs need to account for pollution from specific point and nonpoint sources, such as rainfall. But the law is silent on how to do it, leaving EPA with room to flesh out some of the details on how to allocate reductions among a number of states and watersheds.</p>
<p>The court then analyzed EPA’s approach and found it consistent with the act’s structure and purpose, and with the “<a href="http://definitions.uslegal.com/c/cooperative-federalism/">cooperative federalism</a>” principles embodied in the law.</p>
<p>The court rejected the Farm Bureau’s crabbed interpretation reasoning that: </p>
<blockquote>
<p>Preventing the EPA from expressing allocations and timelines and from obtaining reasonable assurance from affected states appears to frustrate [statutory] goals, and thus the phrase “total maximum daily load” has enough play in the joints to allow the EPA to consider and express these factors in its final action.</p>
</blockquote>
<p>In the circuit court argument, the Farm Bureau assailed EPA’s approach, calling it a <a href="http://www.fb.org/newsroom/news_article/375/">“power grab</a>” with ominous implications for usurping state land use authority across the nation. </p>
<p>In fact, however, it was the six basin states that <a href="http://www.cbf.org/how-we-save-the-bay/chesapeake-clean-water-blueprint/history-of-bay-cleanup-efforts">asked EPA to step in and create the blueprint</a> to overcome the lack of progress on cleanup over the past three decades and find a way forward. Indeed, the only states opposed to the plan were from outside the basin. </p>
<p>The Third Circuit dismissed the Farm Bureau’s alarmist argument with the comment: “The challenge is long on swagger but short on specificity.”</p>
<p>In court the Farm Bureau trotted out the familiar argument that “<a href="http://www.fb.org/newsroom/nr/nr2010/12-14-10/S1816_letter.pdf">voluntary compliance</a>” approaches would produce superior result if EPA just stayed out of it.</p>
<p>However the court made short shrift of this argument as well, saying “Although Farm Bureau claims that the Chesapeake Bay will be cleaned up without EPA intervention, the contention defies common sense and experience.”</p>
<p>If the Chesapeake Bay is to be restored, changes in land use, such as installing stormwater controls, maintaining buffer strips along streams, reducing the application of fertilizers, improving manure management and using cover crops to control runoff will surely be required. But it is up to the states, not EPA, to implement the specific measures required. The blueprint relies more on cooperation than coercion to succeed.</p>
<h2>Precedent setting</h2>
<p>The states that joined the Farm Bureau have expressed the concern that the Chesapeake Blueprint could become the <a href="http://www.cattlebusinessweekly.com/Content/Default/Rotator/Article/Updated-Chesapeake-Bay-case-may-set-precedent/-3/463/7888">model</a> for addressing agricultural pollution across the country. If so, that would be a very good thing, in my view. </p>
<p>According to the 2004 National Water Quality Inventory <a href="http://www.epa.gov/sites/production/files/2015-09/documents/2009_01_22_305b_2004report_factsheet2004305b.pdf">Report</a> to the U.S. Congress, agriculture is the leading cause of impairment of rivers, lakes and estuaries everywhere in the country, including <a href="https://www.washingtonpost.com/news/energy-environment/wp/2016/03/01/supreme-court-ends-challenge-to-the-chesapeake-bay-cleanup-plan/">large farms around the Mississippi</a>.</p>
<p>Activities that contribute to water pollution include confined animal facilities, grazing, plowing, pesticide spraying, irrigation, fertilizing, planting and harvesting. The major agricultural pollutants that result from these activities are sediment, nutrients, pathogens, pesticides and salts. Agricultural activities also can damage habitat and stream channels.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/113598/original/image-20160302-25918-1p5tevc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Agriculture and ranching interests opposed the EPA’s plan to restore the Chesapeake Bay over worries the agency will use the Clean Water Act to try to clean other waterways.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos//4908420154/in/photolist-8tJWiG-nHzCN8-bn85j7-cXjj4m-gV6qoC-dnqrT3-cXjiPo-bn85Yb-bA2THe-5NGE3-fLEMTh-cXjkbA-cXjBtN-fLockR-f3neJv-ciJrpC-dWvsUe-78BoS2-6XxnQQ-zDA1oW-gUZQTv-cXjfuw-fLofDH-bn83qL-fLoe5F-9iTRnj-8CSGZk-fLEYyo-bycTmo-7meQwk-dAATHj-bn81c3-c5h8uw-bn844y-djwGDg-gV2KAd-aw9kee-iwsbK-8uS84J-qhyUT-piiM8t-auWBkp-nkCwFU-ZAsrV-aBJTa5-9d2XbQ-Kqc8a-2hew1y-znw4nz-8rovJn">agrilifetoday/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>Agricultural sources in the Mississippi River Basin are estimated to contribute about 65 percent of the <a href="http://www.ers.usda.gov/media/873632/waterquality.pdf">nitrogen loads</a> creating the Dead Zone in the Gulf of Mexico. </p>
<p>The Dead Zone fluctuates in size each year, extending a record 8,500 square miles during the summer of 2002 and stretching over 6,450 square miles – an area about the size of Connecticut and Rhode Island combined – during the summer of 2015.</p>
<p>Pesticides are another major source of impairment. According to the U.S. Geological Survey’s National Water Quality Assessment (NAWQA) Program, more than <a href="http://www.ers.usda.gov/media/873632/waterquality.pdf">90 percent</a> of water and fish tissue samples from all streams sampled contained one or more pesticides.</p>
<p>Farms are also contaminating public water supplies. The City of Des Moines Water Works recently filed <a href="https://dockets.justia.com/docket/iowa/iandce/5:2015cv04020/43918">suit</a> against farmers in three Iowa counties as a result of nitrate contamination that has forced the city to build the largest <a href="http://www.eenews.net/greenwire/2016/02/29/stories/1060033152">denitrification facility</a> in the world to lower nitrogen levels. </p>
<p>All of these pollutants in our waterways have a cost. The decline of the Chesapeake oyster and its fishery – which were once called “Chesapeake gold” because of their profitability – has cost Virginia and Maryland <a href="http://www.chesapeakebay.net/blog/post/cleaning_up_chesapeake_bay_will_benefit_regions_economy_according_to_new_re">more than US$4 billion in losses</a> in the past 30 years, In addition, farmers and owners of farmland receive direct <a href="http://www.downsizinggovernment.org/agriculture/subsidies">subsidies</a> to the tune of $10 billion to $30 billion each year, as well as billions in indirect subsides, such as <a href="http://business.nbcnews.com/_news/2012/06/18/12240997-crop-insurance-a-boon-to-farmers-and-insurers-too">crop insurance</a>.</p>
<p>Given all of this public support, one would think the Farm Bureau would focus more on ways to reduce agricultural pollution of public waters than on lawsuits challenging EPA’s efforts to abate it. Instead, in a statement, the Farm Bureau indicated it will continue to fight similar regulations: “This lawsuit has ended, but the larger battle over the scope of EPA’s power is not over.”</p><img src="https://counter.theconversation.com/content/55678/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Parenteau does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In its first environmental case post-Scalia, the Supreme Court rebuffs farm and ranching interests that opposed the EPA’s multistate plan to restore Chesapeake Bay using the Clean Water Act.Patrick Parenteau, Professor of Law, Vermont Law & Graduate SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550102016-02-26T11:07:31Z2016-02-26T11:07:31ZFilling the Supreme Court vacancy: lessons from 1968<figure><img src="https://images.theconversation.com/files/112754/original/image-20160224-16455-kxkj5e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Who will join their ranks now -- and when? </span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Supreme_Court_US_2010.jpg">Steve Petteway/SCOTUS</a></span></figcaption></figure><p>United States Supreme Court Associate Justice Antonin Scalia’s death this month has created something of a dilemma – to put it politely – for the president and Congress. </p>
<p>Supreme Court vacancies are challenging to fill at the best of times, but an unexpected vacancy in the final year of a president’s term is especially tricky. And then add to that the particularly contentious relationship between the nation’s two major parties. </p>
<p>The clearest sign of that came this week, when Senate Majority Leader Mitch McConnell of Kentucky <a href="http://www.nytimes.com/2016/02/24/us/politics/supreme-court-nomination-obama.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news">announced</a> that the Senate would not consider any nomination made prior to the presidential election in November. </p>
<p>History offers a guide here, not just about what not to do but also about what might actually work. </p>
<h2>The year was 1968</h2>
<p>Some cite the seat that ultimately went to Anthony Kennedy in 1988 as the last time a president found himself asked to fill a vacancy during his last year in office. But that vacancy actually occurred in 1987, giving President Reagan and the Senate more time to work out a solution. </p>
<p>In fact, the last time the whole process took place during a president’s final year in office was in 1968, and it is a cautionary tale in more than one respect.</p>
<p>As GOP presidential candidate Richard Nixon gained ever more momentum in the spring of that year, then-Chief Justice Earl Warren began thinking about retiring from the court, so as to give President Lyndon Johnson the chance to replace him. </p>
<p><a href="http://www.amazon.com/Super-Chief-Supreme-Judicial-Biography/dp/0814778267">Warren’s motives</a> here were both <a href="http://www.amazon.com/Arthur-J-Goldberg-Deal-Liberal/dp/0195071050">personal and political</a>.</p>
<p><a href="http://www.alibris.com/search/books/isbn/9780805018349">He and Nixon had clashed</a> back in 1952, when then-Governor Warren of California sought the GOP presidential nomination, and then-Senator Nixon worked actively to undermine Warren’s support in the California GOP delegation. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=748&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=748&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=748&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=940&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=940&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112752/original/image-20160224-29156-1axbl5c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=940&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Earl Warren, Supreme Court Chief Justice (1953-1969).</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Earl_Warren#/media/File:Earl_Warren.jpg">Harris & Ewing, Harvard Law School</a></span>
</figcaption>
</figure>
<p>Warren by then <a href="http://www.amazon.com/Super-Chief-Supreme-Judicial-Biography/dp/0814778267">had come to see</a> Nixon, as so many others did, as a devious opportunist with character flaws so serious as to make him a poor candidate for higher office. </p>
<p>Warren was also alarmed by <a href="http://cup.columbia.edu/book/law-and-order/9780231115131">Nixon’s attacks</a> in 1968 on the Warren Court as being insufficiently protective of “law and order.” He was also perturbed by Nixon’s pledge to appoint justices to the court who would overturn Warren Court rulings that strengthened protections for criminal suspects and defendants. </p>
<p>Warren, who turned 77 in March 1968, thought he was unlikely to outlive a Nixon presidency (he didn’t), and so wanted to deny Nixon the chance to name Warren’s successor for all of these reasons.</p>
<p>When the Democrats’ most promising candidate to oppose Nixon, New York Senator Robert Kennedy, was killed on June 4, leaving Nixon with a clear path to victory in the fall, Warren decided to go through with his plan. </p>
<h2>Warren and Johnson against Nixon</h2>
<p>On June 13, 1968, Warren went to see Johnson and informed him that as soon as a successor was confirmed by the Senate, Warren would retire. </p>
<p>Johnson, motivated by the same desire to deny Nixon and the Republicans the sort of “law and order” justice that they wanted, <a href="http://yalebooks.com/book/9780300046694/abe-fortas">promptly nominated his old friend </a>and aide Abe Fortas, who was then serving as an associate justice, as chief justice. (To fill the seat Fortas would be vacating, Johnson nominated another Texas crony, former Congressman Homer Thornberry.) </p>
<p>The result was a complete fiasco. </p>
<p>The Republicans, though in the minority in the Senate then, rallied to oppose what they saw as a blatantly political scheme to deny Nixon the kind of choice he favored should he be elected.</p>
<p>Conservative Southern Democrats agreed, and by joining forces with the Republicans in the Senate, succeeded in <a href="http://yalebooks.com/book/9780300046694/abe-fortas">blocking Fortas’ nomination.</a> </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112755/original/image-20160224-16464-k4h5gb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">LBJ and Abe Fortas confer in the Oval Office in July 1968.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:LBJ_and_Abe_Fortas.jpg">Yoichi Okamoto</a></span>
</figcaption>
</figure>
<p>And by subjecting Fortas to a round of highly contentious confirmation hearings, Johnson also made matters even worse from his perspective. When it <a href="http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm">emerged</a> that Fortas had accepted a “privately funded offer to teach at American University,” support for his appointment evaporated. Johnson withdrew the nomination, and eventually Fortas resigned from the court in May 1969, thereby giving Nixon not one but two early appointments to the court.</p>
<p>The clear lesson of the Fortas fiasco was not to pick a nominee of the sort that the opposition party and its presidential candidate would strongly oppose.</p>
<p>That’s even more true today, because the movement of conservative white Southerners into the Republican Party since 1968 has led to an outright GOP Senate majority, which was not true in 1968.</p>
<h2>And now in 2016…</h2>
<p>Now the Republicans have formal control over the Senate Judiciary Committee, which vets Supreme Court nominees, and over the larger Senate itself, the body that must confirm them. They are, in other words, in an even better position to block a nominee to whom they object than they were in 1968.</p>
<p>The clearest sign that they intend to try is the recent, unprecedented announcement that the GOP leadership in the Senate won’t permit anyone to be considered until after the presidential election. Thus, unless something dramatic and unexpected happens to change the terms of partisan debate on this issue, no nomination can be approved this year.</p>
<p>All of this suggests that President Obama, if he wants to have any hope of getting a nominee confirmed before the November election, should pick someone acceptable to a majority of the Senate Republicans. </p>
<p>If Obama did that, the principal rationale for GOP obstructionism in the Senate would disappear. Sticking with their refusal even to consider such a nominee might result in so much public outcry as to persuade the Senate Republican leadership to change course.</p>
<p>The most likely approach would be to choose someone from the U.S. Courts of Appeals (or from a state Supreme Court) who was a Republican appointee to that post.</p>
<p>This choice would have to be, however, also acceptable to Senate Democrats. Thus, such a nominee would also have to possess a centrist and uncontroversial record as a judge.</p>
<p>There must, I would warrant, be people like that on the bench. I certainly hope that the responsible people involved in this process are looking at them.</p><img src="https://counter.theconversation.com/content/55010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Stebenne does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The last time a president nominated a Supreme Court justice during his last year in office was in the tumultuous year of 1968. It didn’t go well.David Stebenne, Professor of History and Law Faculty, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/552112016-02-24T11:09:08Z2016-02-24T11:09:08ZFormer clerk on Justice Antonin Scalia and his impact on the Supreme Court<p>I was in Washington, D.C., over the weekend to attend memorial services for my old boss, Justice Antonin Scalia. </p>
<p>As one of his former clerks – 15 years ago now – I met his casket on the steps of the Supreme Court on a <a href="http://www.nytimes.com/2016/02/20/us/politics/justice-antonin-scalia-to-be-honored-at-supreme-court.html">chilly Friday morning</a> and witnessed thousands of people standing in line for three hours or more to get a brief glimpse of the casket inside. <a href="http://www.nytimes.com/2016/02/21/us/politics/justice-antonin-scalias-funeral-lets-washington-pause-in-praise.html">On Saturday</a>, I saw thousands more pile into the Basilica of the National Shrine of the Immaculate Conception for his two-hour memorial mass.</p>
<p>All weekend long, I was reminded of the justice’s charm, his humor and his razor-sharp intellect. When with the justice, there was never a dull moment.</p>
<p>But more than anything, the weekend reminded me of something else: the justice was not just a judge; he was the leader of a successful movement – and that movement, in my view, will continue long after his death.</p>
<h2>Keeping judges in check</h2>
<p>Justice Scalia sought to persuade us that unelected judges in a democracy should keep their lawmaking to a minimum. And he thought his philosophies of originalism and textualism were the best ways to determine when judges strayed too far.</p>
<p>Both originalism and textualism instruct judges to interpret the law as people at the time the law was written would have understood its words, not to “update” the words by trying to figure out what people today would want the law to say. Justice Scalia thought we already had a mechanism to update our laws: the democratic process. He thought judicial “updating” too often enabled unelected judges to substitute their own policy preferences for those of the American people.</p>
<p>Justice Scalia did not invent these philosophies, nor was he the first to recognize the uneasy place of unelected judges in a democracy. But he was by far the most powerful spokesman these ideas have ever enjoyed.</p>
<p>The key to Scalia’s success was that he was only one part judge. He was also one part legal philosopher and one part activist – an activist against judicial activism. </p>
<p>He wrote articles, authored <a href="http://www.amazon.com/Antonin-Scalia/e/B001I9N9XW">books</a> and delivered speeches all designed to reach as many people as possible. His writing style was accessible and provocative – for some, <a href="http://www.politico.com/story/2016/02/best-antonin-scalia-quotes-219274">too provocative</a> – because he wanted to attract attention to his ideas. He even wrote his opinions like speeches, which is why he liked to read them aloud as he crafted them.</p>
<p>It is true that Justice Scalia was not on the winning side in many of the court’s biggest cases, and he never converted many of his colleagues to his philosophies. But movements are about something bigger than winning a handful of cases today; movements are about the long run. And Justice Scalia may have forever changed how the judiciary, the academy and even the public think about the law.</p>
<h2>Three spheres of influence</h2>
<p>Consider first the judiciary. Scholars have found that judges – even those who do not subscribe to Scalia’s philosophies – started doing their jobs differently after he joined the court in 1986. For example, over the last 30 years judges have more often cited in their opinions textualist and originalist materials such as <a href="http://www.yalelawjournal.org/article/supreme-court-and-circuit-court-dictionary-use">dictionaries</a> and the <a href="http://thomas.loc.gov/home/histdox/fedpapers.html">Federalist Papers</a> and less often competing materials such as <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896746">legislative history</a>. As Professor Frank Cross found in a <a href="http://www.journals.uchicago.edu/doi/abs/10.1086/659986">study</a> of lower court judges: “the most striking result is the extremely high rate of citations to Justice Scalia’s opinions.”</p>
<p>Consider next the academy. To be sure, originalists and textualists are still a small minority in the academy, but the appeal is growing. There are now two academic centers – one at <a href="https://www.law.georgetown.edu/academics/centers-institutes/constitution/">Georgetown</a> and one at the <a href="https://www.sandiego.edu/law/centers/csco/">University of San Diego</a> – devoted entirely to the study of originalism. And the growth has been nonpartisan. So-called “new originalist” scholars are now using Scalia’s philosophies toward liberal ends.</p>
<p>Consider finally the public. Scalia’s philosophies are so easy to explain and understand that, now, when conservative politicians are asked what kind of judges they will appoint to the bench, they almost always say only originalists and textualists <a href="http://abcnews.go.com/TheLaw/BushLegacy/story?id=6597342&page=1">“like Justice Scalia and Justice Thomas.”</a> Liberal politicians tend to avoid invoking interpretive philosophy altogether, and, instead, focus on case outcomes. Thus, to the extent the public is exposed to any legal philosophy at all, it is usually originalism and textualism.</p>
<p>Some people have wondered whether Scalia’s influence will continue after his death. In my opinion, it will. Not only do his ideas have simplicity and elegance, but Scalia left behind a secret weapon: an entire organization dedicated to furthering his philosophies. This organization, the <a href="http://www.fed-soc.org/">Federalist Society</a>, was cofounded by Scalia himself while he was still a law professor at the University of Chicago, and its members now number in the tens of thousands – including me. Perhaps even more than his books, speeches, articles and opinions, his Federalist Society will ensure that his legacy continues in perpetuity.</p>
<p>No other justice of the Supreme Court has ever before left behind an entire organization dedicated to his or her ideas. But, then again, no other justice has ever been like Justice Scalia.</p><img src="https://counter.theconversation.com/content/55211/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Fitzpatrick is a member of the Federalist Society.</span></em></p>Scalia’s legacy as an activist against judicial activism will be long-lived.Brian Fitzpatrick, Professor of Law, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/549412016-02-22T11:15:13Z2016-02-22T11:15:13ZWhy do we pretend Supreme Court justices are anything but political officials?<figure><img src="https://images.theconversation.com/files/112204/original/image-20160219-25855-5dq873.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Flags fly at half mast at the Supreme Court days after Justice Antonin Scalia's death.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/taedc/24686596049/in/photolist-DBtfWn-bD8x1x-jDQF9p-DZw2o5-a3CKKE-a3CKEW-5Hig6X-DBtkNX-DBtezK-E2HcZv-E8C7ML-DBt7We-E2GL5p-E8Cvqw-DdyhW6-Ddyg4t-DdysuK-DdynJn-E2GPs6-bqdChG-bqdCcQ-bqdC4C-bqdBXU-bqdBM3-eZBQj9-pwoRPY-ufs55r-aQTFUc-aQTFMx-a7Ttts-E1LLdi-jDTChY-jDTBTw-jDRA8P-jDTB8d-jDSQBY-jDRyXn-jDSPJq-jDQC7c-jDTz8m-jDTyAu-jDSNdu-jDTxSA-jDTxBW-jDQzGH-jDSLPN-jDRvkn-jDRv3t-jDTvMU-jDRuwt">taedc/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>The late Justice Antonin Scalia believed that the federal Constitution allows states to ban <a href="https://www.law.cornell.edu/supct/html/91-744.ZX4.html">abortion</a>, to prohibit <a href="https://www.law.cornell.edu/supct/html/02-102.ZD.html">consensual sex</a> between two adults in the privacy of their home as well as <a href="https://www.law.cornell.edu/supremecourt/text/14-556#writing-14-556_DISSENT_5">same-sex marriage</a>, to keep a prestigious state-funded military college <a href="https://www.law.cornell.edu/supct/html/94-1941.ZD.html">all male</a> and to start official legislative sessions (and high school graduation ceremonies) with exclusively <a href="https://www.law.cornell.edu/supremecourt/text/12-696#writing-12-696_OPINION_3">Christian</a> prayers. </p>
<p>Scalia also believed the Constitution prohibits states (even those with long histories of racially segregated public universities) from considering <a href="https://www.law.cornell.edu/supct/html/02-516.ZO.html">race</a> as one factor among many in their admissions processes, from enacting most <a href="https://www.law.cornell.edu/supct/html/10-238.ZO.html">campaign finance</a> reform regulations limiting the spending of money on political campaigns and from enacting <a href="https://www.law.cornell.edu/supct/html/07-290.ZO.html">gun control</a> laws. </p>
<p>Justice John Paul Stevens, the last justice to leave the court before Scalia, disagreed vehemently with every one of those “interpretations” of the Constitution. Although Stevens never voted on same-sex marriage or exclusively Christian prayers at legislative sessions, he would certainly have disagreed with Scalia on both issues. </p>
<p>Both men were skilled lawyers and jurists as well as dedicated public servants. And yet, a country with a Supreme Court of five Justice Scalias would look substantially different than a country with five Justice Stevenses. </p>
<p>Despite an avalanche of commentary in the popular press, social media, academics circles and cable news shows on the implications of Scalia’s death, few are willing to say out loud what should now be patently obvious: we are not replacing a judge bound in any real sense by the law but an important political official who happens to sit in a courtroom. This person makes decisions not based strictly on legal interpretations but on his values writ large.</p>
<p>The <a href="http://www.jstor.org/stable/10.1086/468080?seq=16#page_scan_tab_contents">most cited</a> legal scholar of our time, Judge Richard Posner, has an eloquent way of making this same point. He has <a href="http://www.theatlantic.com/magazine/archive/2006/03/in-praise-of-judicial-modesty/304769/">said</a> that choosing between different results in hard constitutional law cases is like choosing between margaritas and cosmopolitans. Taste, not logic, dictates the choice.</p>
<p>However true that is for lower court federal judges and state judges, it is obviously accurate for Supreme Court justices whose decisions cannot be reviewed except by formal amendments to the United States Constitution, which are extremely rare. Even more importantly, they do not have to follow the prior decisions of past courts. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/112205/original/image-20160219-25885-1lvt5t6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Before starting his term, Obama visited the Supreme Court. Now with less than a year left, he faces a political fight over Justice Scalia’s successor.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/changedotgov/3198083750/in/photolist-5SB1T1-7fotCu-5SwFCg-9YiWra-6Jdk8n-j43U59-6axN99-a3WYXW-xj83f-4WFUDx-btygP7-a1uuNy-xj7XB-xj88i-9ZMHFa-dBdPB6-roAhuQ-9ZpvgH-9v3EpX-4Mn6P4-8qhrJ-a3eeyu-yU1Kp-e79FD4-pECGPN-opMzcn-gx8Sae-a2R5NT-nJDF3n-4U23Si-oa1r4G-3P8QMm-8qhfK-5Absx1-uDJmdG-dDAJ22-Be9e6-5SB1Rf-8Cp6in-o21hHu-gG2138-o8iZEp-ppFA2w-8NR5AN-8NR5so-5KcsyE-8NMYf2-aGpzHV-7newQb-9sQTGY">changedotgov/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>As I have <a href="http://scholarship.law.upenn.edu/jcl/vol16/iss2/5/">written</a> before, in virtually every litigated area of constitutional law, from free speech to race relations to federal power to state sovereign immunity, the Supreme Court has reversed course over and over. </p>
<p>Those changes occurred not because the text of the Constitution changed or the justices discovered new historical evidence concerning the meaning of the Constitution. Instead, it was because the justices’ values writ large (social, moral, religious and partisan) changed when the people on the court changed or existing justices simply changed their minds. </p>
<p>So given that the court without Scalia is divided among four Republicans and four Democrats, it is no wonder that the nomination and confirmation process in the wake of Scalia’s death is so politically charged and divisive. </p>
<p>With a court now evenly divided between conservatives and liberals, both the majority leader of United States Senate and the president of the United States are acting reasonably by retreating to their corners and coming out fighting with all of their political resources at their disposal (though they both could have waited a few days to do so). </p>
<p>As Adam Liptak <a href="http://www.nytimes.com/2016/02/19/us/politics/scalias-death-offers-best-chance-in-a-generation-to-reshape-supreme-court.html">reported</a> in <em>The New York Times</em>, a number of key legal decisions – on abortion, gun control, campaign finance reform, separation of church and state, immigration and voter redistricting – could change dramatically and move to the left with five as opposed to four liberals on the court. </p>
<p>Given that this is an election year and the end of a two-term presidency, the stakes for the American people could not be higher. If the goal of the process was to simply find an outstanding lawyer or judge, the process would already be under way. </p>
<p>But the role of Supreme Court justice is not to interpret texts and make legal decisions but to make hard value choices on the most difficult moral and politically charged issues of our day. </p>
<p>That’s why I believe our two major political parties owe it to the American people to do their best to find a replacement for Justice Scalia who serves the interests of their respective constituencies. </p>
<p>Because the Republican Party controls the Senate, which must confirm the nominee, and the president is a Democrat (who must nominate Scalia’s successor), it is not surprising that the process has become one of low politics with each side scrambling for <a href="http://www.latimes.com/nation/la-na-supreme-court-politicized-20160216-story.html">partisan advantage</a>. </p>
<p>As Professor Mark Tushnet of Harvard Law School likes to <a href="http://concurringopinions.com/archives/2011/01/book-review-parties-politics-and-the-constitution-a-review-of-tushnets-why-the-constitution-matters.html">say</a>, law truly is politics all the way down. Justice Scalia’s untimely death certainly proves the truth of that maxim.</p><img src="https://counter.theconversation.com/content/54941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Segall does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A constitutional legal scholar argues that Justice Scalia’s death set off a partisan fight precisely because Supreme Court justices are very much political actors, driven by values as much by law.Eric Segall, Kathy & Lawrence Ashe Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/550832016-02-22T11:11:07Z2016-02-22T11:11:07ZMaking sense of the Scalia conspiracy theory<figure><img src="https://images.theconversation.com/files/112211/original/image-20160219-25882-kbnlg3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rumors abounded in the days after the death of Supreme Court Justice Antonin Scalia.</span> <span class="attribution"><span class="source">Nick Lehr/The Conversation</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Following Justice Antonin Scalia’s death on February 13, a former criminal investigator for Washington, D.C.’s Metropolitan Police Department named William O. Ritchie took to Facebook.</p>
<p>“My gut tells me there is something fishy going on in Texas,” he wrote.</p>
<p>With those words, Ritchie helped draw national attention to an emerging conspiracy theory: that Scalia may have been murdered. </p>
<p><a href="https://www.washingtonpost.com/news/post-nation/wp/2016/02/15/conspiracy-theories-swirl-around-the-death-of-antonin-scalia/">According to <em>The Washington Post</em></a>, Ritchie continued that he was “stunned that no autopsy was ordered for Justice Scalia,” before pointing out the many flaws he saw in published accounts on the subject.</p>
<p>Ritchie wasn’t the first to float this conspiracy. Conservative radio talk show host Alex Jones suggested as much <a href="https://www.facebook.com/AlexanderEmerickJones/videos/10153919891063459/">in a video</a> he posted to Facebook on the day of Scalia’s death (“The question is: Was Antonin Scalia murdered?”).</p>
<p>The next morning, the Drudge Report <a href="https://www.facebook.com/mattdrudge/posts/10153844981196955">pointed out</a> that the judge was found with a pillow over his head, presumably providing additional evidence of foul play. Conservative political commentator Michael Savage also <a href="http://www.michaelsavage.wnd.com/2016/02/was-scalia-murdered/">weighed in</a>, wondering “Is it a conspiracy theory to ask questions that are so obviously in need of answer, or is it just common sense?”</p>
<p>But as someone who has <a href="http://wp.comm.ohio-state.edu/misperceptions/">studied how and why misperceptions emerge and spread</a>, Ritchie’s words struck me as noteworthy. Unlike Savage or Jones, Ritchie’s livelihood isn’t dependent on appealing to a conservative audience or making shocking allegations.</p>
<p>To the contrary, this is a man who made his living investigating crimes through the accumulation of evidence and the judicious use of reason. It is at least plausible that his primary motivation is to ensure that the truth is known.</p>
<p>The Scalia conspiracy theory is likely to strike many – especially liberal Democrats – as hard to fathom. Why should anyone by surprised at the death of a 79-year-old man when the <a href="https://www.cia.gov/library/publications/the-world-factbook/fields/2102.html">average life expectancy</a> of a man in the U.S. is 77? Why is the decision by Scalia’s family not to have an autopsy performed met with skepticism? And why second-guess the U.S. Marshals Service, an agency <a href="http://www.usmarshals.gov/judicial/">charged with protecting justices of the Supreme Court</a>, when it concluded that there was no foul play?</p>
<h2>Is it really so strange?</h2>
<p>It may be tempting to assume that reasonable people are immune to conspiracy theories, but doing so would be a mistake. Research into misperception, rumor, and conspiracy theory suggests that even reasonable individuals can reach conclusions that don’t align with the best available evidence.</p>
<p>Researchers have identified <a href="http://www.newyorker.com/science/maria-konnikova/i-dont-want-to-be-right">numerous strategies</a> that individuals use to assess what is true. Under the right circumstances, each can lead to misperceptions. For example, if a claim is consistent with other things you know, you will likely find it easier to understand, which in turn makes it seem more truthful – a phenomenon that has been called <a href="http://io9.gizmodo.com/these-statements-are-both-true-but-one-is-easier-to-be-1687482541">the illusory truth effect</a>. Claims that contradict a prior belief, in contrast, <a href="https://www.unc.edu/%7Efbaum/teaching/articles/jpsp-1979-Lord-Ross-Lepper.pdf">tend to elicit counterargument</a>. </p>
<p>The coherence and explanatory power of a causal story also influence whether it is believed. Individuals will often stick with a plausible explanation even if the available evidence doesn’t support it. In a <a href="http://psycnet.apa.org/journals/xlm/20/6/1420">classic study</a>, researchers found that individuals would continue to attribute a warehouse fire to paint held in a storage room even after they were told – and could recall – that the storage room was empty at the time of the fire. </p>
<p>For those who see <a href="http://www.infowars.com/33-conspiracy-theories-that-turned-out-to-be-true-what-every-person-should-know/">government-supported conspiracies as an everyday reality</a>, the suggestion that Justice Scalia’s death is part of a coordinated plot to gain political advantage may well seem sensible, even if solid evidence is lacking. Without knowing anything about Ritchie’s political views, we can’t say whether this was a factor here, but it is likely to play a role in some individuals’ assessments.</p>
<p>One final consideration that individuals use when assessing whether a claim is true is the belief of others. The more often we hear a claim, <a href="http://www.upi.com/Top_News/World-News/2012/10/09/Repeated-misinformation-easy-to-believe/UPI-37201349796543/">the easier it is to believe</a> – especially claims that come from people we know and trust.</p>
<p>For example, one of the most important predictors of what Americans think about the risks posed by climate change is what members of Congress say and do about this issue. The more Democrats voice support for the issue, and the more Republicans are critical of it, <a href="http://journalistsresource.org/studies/environment/climate-change/shifting-public-opinion-empirical-assessment-influencing-concern-u-s">the more polarized Americans have become</a>. </p>
<p>In light of this, we should expect Donald Trump’s <a href="http://www.cbsnews.com/news/donald-trump-considers-theory-scalia-might-have-been-murdered">recent speculations about the Scalia conspiracy theory</a> to contribute to growing public concern about this possibility.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"699960759766286337"}"></div></p>
<h2>The challenge of setting the record straight</h2>
<p>Notably, research suggests that misperceptions – including belief in unsupported conspiracy theories – are <a href="http://blog.nature.org/science/2013/03/01/dan-kahan-climate-changescience-communications/">not primarily due to a lack of information</a>. Nor can such beliefs be attributed to so-called media echo chambers. My colleagues and I have found that most Americans consume news <a href="http://blogs.lse.ac.uk/usappblog/2013/10/14/americans-dont-live-in-partisan-news-echo-chamber/">from a diverse range of outlets</a>. (And if you’re skeptical of analyses based on Americans’ self-reported news exposure, note that behavioral studies yield similar results, both <a href="http://www.nytimes.com/2010/04/20/opinion/20brooks.html?_r=0">online</a> and <a href="http://dx.doi.org/10.1111/j.1460-2466.2011.01616.x">off</a>.)</p>
<p>So is there anything we can do to defuse the Scalia conspiracy theory or others like it? Many studies, including <a href="http://techcrunch.com/2013/01/24/study-finds-that-we-still-believe-untruths-even-after-instant-online-corrections/">this one</a> by a colleague and me, find that attempts to correct misperceptions often fail. Sometimes they <a href="http://www.cjr.org/behind_the_news/the_backfire_effect.php">fail spectacularly</a>. Indeed, some scholars conclude that humans are hopelessly irrational, that emotional biases <a href="http://www.cambridge.org/US/academic/subjects/politics-international-relations/politics-general-interest/rationalizing-voter">will always win out</a>. </p>
<p>Yet even if we are inherently emotional beings, there may still be hope for humans’ ability to reach reasoned conclusions. Studies suggest that fact-checking – whether by the <a href="http://abs.sagepub.com/content/57/11/1558.abstract">media</a> or by <a href="http://www.aaai.org/ocs/index.php/ICWSM/ICWSM14/paper/view/8122">members of one’s own social network</a> – can help promote more accurate beliefs. Fact-checking can also <a href="http://onlinelibrary.wiley.com/doi/10.1111/ajps.12162/abstract">motivate political leaders</a> to be more careful about the claims they make. Some of the best strategies – as journalist Craig Silverman points out in his article <a href="http://towcenter.org/wp-content/uploads/2015/02/LiesDamnLies_Silverman_TowCenter.pdf">“Lies, Damn Lies, and Viral Content”</a> – include focusing debunking efforts on the idea, not the person, and being mindful of the biases described here. (Other good reviews of correction strategies are <a href="http://www.dartmouth.edu/%7Enyhan/nyhan-reifler-report-naf-corrections.pdf">here</a> and <a href="http://psi.sagepub.com/content/13/3/106">here</a>.)</p>
<p>There may also be things that individuals can do to reduce the biases to which all humans are prone. We can, in psychologist Daniel Kahneman’s <a href="http://www.scientificamerican.com/article/kahneman-excerpt-thinking-fast-and-slow/">words</a>, “think slowly,” striving to reduce our reliance on intuition and gut feelings, instead focusing on more thorough examination of the evidence. Indeed, there is evidence that when individuals are made aware of their biases, <a href="http://www.sciencedirect.com/science/article/pii/S006526010639003X">they are often able to compensate</a>.</p>
<p>But this will not always be enough, since there is ample evidence that <a href="http://www.culturalcognition.net/browse-papers/ideology-motivated-reasoning-and-cognitive-reflection-an-exp.html">reasoning skills</a> and <a href="http://www.cambridge.org/US/academic/subjects/politics-international-relations/politics-general-interest/rationalizing-voter">careful thought</a> can actually increase bias.</p>
<p>Taken as a whole, research suggests that even thoughtful individuals with good intentions – including Ritchie – are prone to embrace claims for which there is little evidence, and to defend those claims in the face of contradictory evidence. This is particularly likely when stakes are high, when outcomes are hard to explain or accept, or when a claim is consistent with one’s political values. The evidence suggests that Richtie’s speculations are wrong, but there is nothing surprising about his suspicions.</p><img src="https://counter.theconversation.com/content/55083/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>R. Kelly Garrett receives funding from the National Science Foundation. </span></em></p>How do rational people get sucked into believing conspiracies? According to research, we’re more susceptible than you’d think.R. Kelly Garrett, Associate Professor of Communication, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547972016-02-18T10:45:45Z2016-02-18T10:45:45ZWhat Scalia’s death means for environment and climate<figure><img src="https://images.theconversation.com/files/111711/original/image-20160216-19239-vwpn1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In addition to the Clean Power Act policy for climate change, the Supreme Court will be hearing cases on the extent of protections under the Clean Water Act.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/ex_magician/3289907575/in/photolist-61HCUp-bavT4F-tPYxk4-hLgSCg-jQRDYj-jrKnaE-qzgkfT-skQh75-mdN4EV-y9tDjM-qzdQhK-hLgUta-o5ZaKY-wasrAr-hLhJUC-juVNLn-s9QdV9-qRwM66-6N3kju-7zPWjp-qz6zjo-9SA5Dq-L9w3-eBQwG-8ikaHj-9qUhqR-oPGSGd-qJ3AZv-qRvfcK-enDT1p-kLZz8-ojPEwB-ohMWSE-Ch8HPD-zL2mk7-tKekhE-z88Hhu-o3kaNv-o3kban-qpiHZH-8i3njD-ef2vUU-vQsYLC-qz1X4g-oKuWN3-247WD-8sSPTu-qnaPN3-vZyx5-af7FUt">ex_magician/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Justice Antonin Scalia left an indelible mark on American law. His prodigious intellect, distinctive style and sharp wit will be sorely missed by his family, friends and colleagues. </p>
<p>His passing also creates a once-in-a-lifetime opportunity to shift the balance of power on the Supreme Court toward greater protection for the environment and greater access to the courts by those most affected by pollution and resource degradation. </p>
<p>A look at Scalia’s legacy reveals why his absence in the coming months could be a pivotal factor on environmental issues.</p>
<p>With few exceptions, such as his opinion in Whitman v. American Trucking upholding the Environmental Protection Agency’s authority to set <a href="https://www.law.cornell.edu/supct/html/99-1257.ZS.html">health-based air quality standards without regard to cost</a> and his opinion in City of Chicago v. EDF rejecting industry arguments that <a href="https://www.law.cornell.edu/supremecourt/text/511/328">coal ash isn’t a hazardous waste</a>, Justice Scalia’s environmental legacy is decidedly negative. </p>
<h2>Interpreting ‘standing’ and ‘harm’</h2>
<p>He consistently voted in favor of property rights over protection of endangered species, wetlands and other natural resources. He dissented in the court’s landmark ruling in <a href="http://www.supremecourt.gov/opinions/06pdf/05-1120.pdf">Massachusetts v. EPA</a> that the Clean Air Act authorizes the agency to regulate the carbon pollution causing global warming and ocean acidification. </p>
<p>He wrote the <a href="http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf">majority opinion</a> in a case limiting EPA’s authority to require preconstruction permits for new power plants that only emit greenhouse gases. He wrote <a href="http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf">the opinion</a> overturning the mercury rule on a technicality – namely, that EPA should have considered cost as a threshold matter before even embarking on the rulemaking instead of at the stage when the regulations were actually being applied to specific facilities.</p>
<p>He argued that the <a href="https://theconversation.com/epas-clean-water-rule-whats-at-stake-and-what-comes-next-42466">Clean Water Act</a> should be <a href="http://www.lorman.com/resources/u-s-supreme-court-struggles-to-define-wetlands-covered-by-the-clean-water-act-15615">narrowly construed</a> to apply only to “relatively permanent bodies of water” rather than, as the lower courts had consistently ruled for over 30 years, to the entire tributary systems of the nation’s major waterways. </p>
<p>And he is the author of several decisions severely limiting the ability of environmental plaintiffs to challenge unlawful government actions. This includes <a href="https://www.law.cornell.edu/supct/html/90-1424.ZS.html">Lujan v. Defenders of Wildlife</a>, which the late Justice Blackmun in his <a href="http://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1256&context=clr">dissent</a> characterized as a “slash and burn expedition through the law of environmental standing.” </p>
<p>To establish standing, a plaintiff must show how it is injured by the action being challenged. Scalia applied a more liberal test of injury for industry plaintiffs than for environmental plaintiffs. Standing was presumed whenever industry alleged that a government action might cause undue economic harm but not when an environmental organization alleged that the same action would cause undue environmental harm. </p>
<h2>Whither the Clean Power Plan?</h2>
<p>Though President Obama has said he intends to nominate a successor “in due course,” Senate Republicans have vowed to stall the confirmation process in the hope that they will win the White House and have the opportunity to nominate someone more to their liking. </p>
<p>Suddenly the Supreme Court has become a huge prize in the 2016 elections, and, given the stakes involved, it is likely that the vacancy will remain well into 2017, and the court will be forced to make a number of difficult decisions with an evenly divided bench.</p>
<p>A split court has important implications in a number of key environmental cases. </p>
<p>Top of the list is the president’s Clean Power Plan (CPP), a rule that requires states to develop plans to lower carbon dioxide emissions from power plants. Only days before Scalia’s death, the court in a 5-4 party line vote <a href="https://theconversation.com/the-supreme-court-just-handed-the-next-president-a-powerful-lever-to-control-u-s-climate-policy-54511">blocked</a> the rule’s implementation pending a decision by the D.C. Circuit, which has scheduled oral argument for June 2. The stay order provides that it will remain in effect until the Supreme Court either denies review (unlikely) or issues a <a href="https://theconversation.com/in-blocking-epa-clean-power-plan-is-the-supreme-court-wading-deeper-into-politics-54513">final decision</a>. </p>
<p>Most observers believe the government, arguing that the Clean Power Plan is legal, drew a favorable panel on the D.C. Circuit court, which includes Judge Sri Srinivasan, who is rumored to be on Obama’s short list of nominees.</p>
<p>Assuming Srinivasan remains on the panel, and further assuming the panel issues a decision this year upholding the CPP (not a forgone conclusion), there is a good chance the vacancy on the Supreme Court will not be filled by the time the case arrives there in 2017. This increases the odds of a 4-4 split, which would result in the DC Circuit decision being upheld, and the CPP dodging a bullet. </p>
<h2>Clean Waters Act at court</h2>
<p>Another case that may be affected by Scalia’s departure but with far less at stake is <a href="http://www.scotusblog.com/case-files/cases/united-states-army-corps-of-engineers-v-hawkes-co-inc/">Hawkes v. Corps of Engineers</a>. </p>
<p>The question presented is whether landowners can go to court immediately when the regulators make what is called a “jurisdictional determination” under the Clean Water Act finding – for example, that there are wetlands on the property that may require a permit to fill. </p>
<p>There is a clear conflict in the circuits on this question. The Eighth Circuit in Hawkes held that jurisdictional determinations were reviewable in court, whereas the Fifth Circuit in <a href="https://www.ca5.uscourts.gov/opinions%5Cpub%5C13/13-30262-CV0.pdf">Belle Co v. Corps of Engineers</a> ruled that they are not. </p>
<p>Interestingly enough, the disagreement rests on how to read Justice Scalia’s opinion in <a href="http://www.supremecourt.gov/opinions/11pdf/10-1062.pdf">Sackett v. EPA</a>. In that case, a compliance order under the Clean Water Act required restoration of an allegedly illegally filled wetland and exposed the recipient to potential penalties of US$75,000 per day. Scalia ruled that the compliance order in this case is “final agency action” for which there is no adequate remedy in a court other than judicial review under the <a href="http://www.justice.gov/sites/default/files/jmd/legacy/2014/05/01/act-pl79-404.pdf">Administrative Procedure Act</a>.</p>
<p>Another case being closely watched is the challenge to EPA’s Clean Water Rule that seeks to “clarify” the <a href="https://theconversation.com/epas-clean-water-rule-whats-at-stake-and-what-comes-next-42466">jurisdictional scope of the Clean Water Act</a> and whether it covers tributaries that feed into waters protected by the act. </p>
<p>The need for clarification stems in large part from the Supreme Court’s decision in <a href="http://www.supremecourt.gov/opinions/05pdf/04-1034.pdf">Rapanos v. United States</a>, where the court split 4-1-4 and Justice Scalia authored a plurality opinion that would significantly reduce the scope of the act. </p>
<p>Justice Kennedy wrote a concurring opinion rejecting Scalia’s approach and establishing the so-called “significance nexus” test – requiring the government to prove that a wetland, alone or in combination with other wetlands in the watershed, plays an important role in protecting the quality of the water downstream and therefore is subject to the Clean Water Act. Because Kennedy’s significant test has been adopted by nine circuit courts as the controlling opinion from Rapanos, EPA used it as the basis for the Clean Water Rule.</p>
<p>The Sixth Circuit has stayed the rule pending its decision on whether it has exclusive authority to decide its legality. If the Sixth Circuit asserts jurisdiction, a final decision could be issued this year and the court would then be faced with another petition for review, knowing that it could result in yet another divided decision.</p>
<p>Finally there is a case involving the cleanup of Chesapeake Bay which is heavily polluted by agricultural runoff and other sources. The Third Circuit upheld EPA’s landmark cleanup plan in a case brought by the American Farm Bureau and <a href="http://www.scotusblog.com/wp-content/uploads/2016/01/134079p.pdf">joined by over two dozen states</a>.</p>
<p>The issue presented is whether EPA exceeded it authority by developing a complex “pollution budget” and allocating responsibility for reducing the inputs of nitrogen and phosphorous throughout the eight states that comprise the basin. The conference on whether to grant review will be considered at the next conference which is scheduled for February 26. This will be the first test to see whether the post-Scalia court has the appetite to take up a case where there could be a 4-4 split. </p>
<p>With these and other environmental issues on the docket, the absence of Scalia will have a huge impact – as will the question of his eventual successor.</p><img src="https://counter.theconversation.com/content/54797/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Parenteau does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A look at Scalia’s decidedly negative legacy on environment reveals how important the next Supreme Court will be on environmental questions, including the EPA Clean Power Plan.Patrick Parenteau, Professor of Law, Vermont Law & Graduate SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547202016-02-15T13:25:24Z2016-02-15T13:25:24ZWith Justice Antonin Scalia’s death, the battle for the US Supreme Court begins<p>US Supreme Court Justice Antonin Scalia <a href="https://theconversation.com/justice-antonin-scalia-more-quotable-than-influential-54721">has died at the age of 79</a>. He leaves behind a legacy of intelligent rhetoric and landmark opinions, and the court has lost a larger-than-life personality. His death has also prompted a fierce debate, with US <a href="http://www.npr.org/2016/02/14/466720712/gop-debate-scalias-vacancy-trump-puts-jeb-on-the-defense">presidential candidates</a> and <a href="http://time.com/4220717/antonin-scalia-dead-replacement-mcconnell/">elected officials</a> already at loggerheads over what happens next. </p>
<p>Ordinarily the president would choose a nominee and the Senate Judiciary Committee would review the candidate before sending the issue to the full Senate – currently Republian-controlled – which would either support or oppose the nomination. Once confirmed, the nominee would be expected to serve for life. The lifelong term was created to keep high court deliberations far from political influence, so the process of choosing a justice is a very political one indeed.</p>
<p>Scalia’s departure has robbed the court of its most vocal conservative justice. Filling his seat is not merely about finding someone worthy and capable; it’s about the likely tilt of the high court’s decisions. And President Obama’s opponents know that all too well.</p>
<h2>Holding sway</h2>
<p>Obama has only 11 months left to serve, and many of his Republican opponents are <a href="http://www.npr.org/2016/02/14/466720712/gop-debate-scalias-vacancy-trump-puts-jeb-on-the-defense">arguing</a> his “lame duck status” means he shouldn’t nominate a replacement justice. But a look at Scalia’s influence on the court reveals this to be a primarily political preference. This graph shows <a href="http://law2.umkc.edu/faculty/projects/ftrials/conlaw/landmarkvotes.html">27 landmark Supreme Court decisions</a> over his 29-year tenure.</p>
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<span class="attribution"><span class="license">Author provided</span></span>
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<p>The circles in the chart above represent Justice Scalia’s voting position in each case. If the circle is in the red lower half of the chart, he was in the minority; in the green upper half, he was in the majority. A circle level with the number 6 means he was the sixth justice in the majority of a 6:3 vote; level with 4 and he was the fourth justice in the minority of a 5:4 vote.</p>
<p>In 85% of these cases, the vote was 5:4 – often four reliable conservatives versus four reliable liberals, with one swing justice. Justice Scalia was the fifth vote in the majority for 60% of these slim decisions (some circles are labelled to illustrate the issues).</p>
<p>For example, in 2008, Scalia wrote the court’s opinion for <a href="https://www.oyez.org/cases/2007/07-290">District of Columbia v. Heller</a>, a landmark 5:4 decision protecting the right to possess firearms for “traditionally lawful purposes” such as home defence. Without him, the vote could have gone a very different way. The Heller decision will be the law of the land until another case causes the Supreme Court to overturn Heller.</p>
<p>President Obama’s opponents are afraid he will try to replace this guaranteed conservative vote with a guaranteed liberal one, or at least a moderate swing voter. They are duly calling for the Republican-controlled Senate to block any nomination, claiming presidents do not appoint justices in the final year of their term. But that’s simply untrue; it has happened <a href="http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm">five times in the past century</a>. </p>
<p>These opponents fail to mention that President Obama is constitutionally obliged to choose a nominee. The Senate, meanwhile, is obliged to review a nominee and give “<a href="http://www.archives.gov/exhibits/charters/constitution_transcript.html">advice and consent</a>” regarding the nomination – not to hold out for another nominator whose political leanings it prefers. </p>
<p>As Republican Senator Lindsay Graham said when he voted to back Obama’s first Supreme Court nominee, Sonia Sotomayor, “<a href="http://voices.washingtonpost.com/44/2009/07/28/elections_have_consequences_so.html">elections have consequences</a>”. For all that the marathon election cycle might sap an outgoing president’s influence, Obama still has 25% of his second term left to serve. And Graham is also trying to <a href="http://www.politico.com/blogs/south-carolina-primary-2016-live-updates-and-results/2016/02/supreme-court-justice-appointment-lindsey-graham-219249">persuade current Republican Senators</a> that a Republican win in the presidential election is <a href="http://www.theatlantic.com/magazine/archive/2016/01/the-great-republican-revolt/419118/">too uncertain</a> to make stalling a good idea.</p>
<h2>The real concern</h2>
<p>The court is about <a href="http://www.supremecourt.gov/about/procedures.aspx">halfway through its current term</a>, and a lot of important cases are yet to be heard and decided. </p>
<p>On <a href="http://www.supremecourt.gov/oral_arguments/2015TermCourtCalendar.pdf">March 2</a> the court will hear arguments for <a href="https://www.oyez.org/cases/2015/15-274">Whole Woman’s Health v. Hellerstedt</a>, which considers state restrictions on performing abortions. Four weeks later, the court will hear <a href="https://www.oyez.org/cases/2015/14-1418">Zubik v. Burwell</a>, a challenge to President Obama’s universal health care mandate. With only eight justices, there is a good possibility these and other cases will end with tie votes.</p>
<p>In the 1868 decision <a href="https://supreme.justia.com/cases/federal/us/74/107/case.html">Durant v. Essex Company</a>, the court determined that “no affirmative action can be had in a cause where the judges are equally divided in opinion…” In other words, in a 4:4 vote, the decision of the most recent court will stand. This is called “<a href="http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1360&context=wmlr">the rule of affirmance by an equally divided court</a>”, and it sets aside any petition for the Supreme Court to review a lower court’s decision.</p>
<p>In Whole Woman’s Health, the petitioners claim that <a href="http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=832&Bill=HB2">Texas legislation</a> adding restrictions to abortion facilities violates the US Constitution. The most recent court ruled the petitioners failed to prove their case; a 4:4 Supreme Court vote would mean that decision remains. Most conservatives would prefer that outcome.</p>
<p>In Zubik, meanwhile, petitioners claim the <a href="https://www.medicaid.gov/affordablecareact/affordable-care-act.html">Affordable Care Act</a> (Obamacare) violates religious freedom by providing contraception to employees through health care. The most recent court decided the petitioners failed to prove their case, so a 4:4 vote would keep that decision intact. Most liberals favour this outcome.</p>
<p>The difference between these and “affirmative” decisions is that the results of a tie do not become the law of the land. Rather than deciding the constitutionality of laws restricting abortion or providing contraception, ties mean these issues remain unresolved at the national level. </p>
<p>If Senate Majority Leader Mitch McConnell and presidential candidates <a href="http://www.usatoday.com/story/news/politics/onpolitics/2016/02/13/antonin-scalia-ted-cruz-donald-trump-john-kasich-jeb-bush/80350972/">Marco Rubio and Ted Cruz</a> get their way, the court will stall for at least a year until the next president is sworn in and their chosen nominee confirmed. That length of vacancy is unprecedented. </p>
<p>But Obama’s obstructors may not get their wish. The court has already heard arguments, but not yet released opinions, for cases involving <a href="https://www.oyez.org/cases/2015/14-915">the legality of forced unions</a>, <a href="http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin-2/">racial affirmative action</a>, and <a href="https://www.oyez.org/cases/2015/14-940">electoral redistricting</a>. If the Senate can be overcome, a new justice would guarantee there are no ties.</p>
<p>Denying the court the opportunity to make concrete decisions, meanwhile, is a perverse plan indeed. It would block the court from protecting the Constitution and ensuring Americans are served justice – whether or not one of the two parties agrees with its decisions.</p><img src="https://counter.theconversation.com/content/54720/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gina Yannitell Reinhardt has received funding from the US National Science Foundation.</span></em></p>President Obama’s opponents are saying he should leave the choice of a Supreme Court justice to his successor. But that could leave the nation’s highest court in limbo.Gina Yannitell Reinhardt, Lecturer, Department of Government, University of EssexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547152016-02-15T04:33:09Z2016-02-15T04:33:09ZFour steps to appointing a Supreme Court justice<p><strong>Editor’s note: This article was published in 2016 explaining Republican opposition to replacing Justice Antonin Scalia. Please read our <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">updated version about Justice Ruth Bader Ginsburg</a>.</strong></p>
<p>With the unexpected death of United States Supreme Court Justice Antonin Scalia this weekend, the <a href="http://www.nytimes.com/2016/02/15/us/politics/antonin-scalias-death-cuts-fierce-battle-lines-in-washington.html">political battle lines</a> have been drawn. President Obama has made clear that he <a href="http://www.nytimes.com/2016/02/14/us/politics/obama-to-nominate-scalia-successor-over-republicans-objections.html">plans to nominate</a> a successor. His opposition is equally adamant that he should not do so, but allow the choice to be made <a href="http://fox13now.com/2016/02/13/senator-hatch-says-replacing-justice-scalia-should-wait-until-after-presidential-election/">by the next president</a>.</p>
<p>Many Republicans, including presidential hopefuls and current Senators Marco Rubio and Ted Cruz, have already announced their intentions not to act on any nominee the president sends them. </p>
<p>“The president can nominate whoever he wants,” Rubio told Fox News. “We’re <a href="http://video.foxnews.com/v/4755316274001/rubio-senate-not-acting-on-supreme-court-nomination-period/?intcmp=hpvid1#sp=show-clips">not moving forward on it</a>, period.” </p>
<p>The Supreme Court was to rule on many <a href="http://www.salon.com/2016/02/14/liberals_might_miss_justice_scalia_more_than_they_think/">controversial issues</a> this year, including abortion, immigration, affirmative action and voting rights. And because many of the court’s decisions have been decided by a 5-4 vote, typically with the four liberal justices on one side and the five conservative justices on the other, both parties are well aware that replacing Justice Scalia with a more liberal justice will <a href="http://www.nytimes.com/2016/02/14/magazine/scalias-supreme-court-seat-and-the-next-frontier-in-political-hardball.html?action=click&pgtype=Homepage&clickSource=story-heading&module=span-abc-region&region=span-abc-region&WT.nav=span-abc-region">change the balance of power</a> on the court.</p>
<p>Leaving Justice Scalia’s seat empty until there is a new president would mean that difficult cases this term could come down to a tie, evenly split along ideological lines. In those cases, the lower courts’ decisions would stand, as if the Supreme Court had never considered them. This would definitely impair the court’s responsibility to <a href="https://en.wikipedia.org/wiki/Marbury_v._Madison">“say what the law is.”</a> </p>
<p>So what will it take to get a new justice named?</p>
<h2>Step 1: The presidential pick</h2>
<p>The first thing to know is that the Constitution of the United States gives the power of nomination to the president.</p>
<p>Article II, section 2 provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” </p>
<p>By law, President Obama can nominate whomever he wants to replace Justice Scalia. Appointment is really a three-step process: nomination (by the president), confirmation (by the Senate), and appointment (by the president again).</p>
<p>It’s somewhere between nomination and confirmation that the going gets tricky.</p>
<h2>Step 2: The Senate Judiciary Committee</h2>
<p>Once the president has made a choice, the nomination is <a href="http://www.judiciary.senate.gov/nominations/supreme-court">referred to the United States Senate</a>. Since the early 19th century, this has meant that the nomination will first be considered by a smaller group within the Senate, the Senate Judiciary Committee. </p>
<p>The Judiciary Committee currently has <a href="http://www.judiciary.senate.gov/about/members">20 members</a> – 11 Republicans and 9 Democrats – and has a <a href="http://fpc.state.gov/documents/organization/50146.pdf">three-step process</a> of its own. </p>
<p>First, it conducts a prehearing investigation into the nominee’s background.</p>
<p>Second, it holds a public hearing, in which the nominee is questioned and may give testimony about everything from her judicial philosophy to her stand on abortion.</p>
<p>Finally, the committee will “report” its recommendation to the full Senate. The committee can report the nomination with a favorable recommendation, a negative recommendation or no recommendation.</p>
<p>If a majority of the committee opposes confirmation of the nominee, it can technically <a href="http://fpc.state.gov/documents/organization/50146.pdf">refuse to report</a> the nomination, therefore preventing the full Senate from considering the nominee at all. </p>
<p>This hasn’t happened since 1881, and would deviate from the committee’s “traditional practice.” But that does not mean it is out of the question. The chairman of the committee, Republican Senator Chuck Grassley, has already said that, in his view, the Senate <a href="http://www.scotusblog.com/2016/02/judiciary-panel-chair-wait-on-court-until-after-election/">should not act</a> on a Supreme Court nomination before the presidential election in November.</p>
<h2>Step 3: The full Senate</h2>
<p>Let’s assume that the committee does report the nomination to the full Senate. </p>
<p>There are 100 senators in the United States Senate – two for each state. Currently, the Senate is <a href="https://en.wikipedia.org/wiki/List_of_current_United_States_Senators">majority Republican</a>, with 54 senators to the Democrats’ 44, with two independents for added flavor. </p>
<p>This is where it gets interesting, because the Senate follows rules so arcane and incomprehensible that otherwise reasonable writers freely refer to them as “<a href="http://voices.washingtonpost.com/ezra-klein/2010/05/one_insane_senate_procedure_us.html">insane</a>.”</p>
<p>In order to consider the nomination, the Senate has to enter a special “executive session.” This is typically achieved by having the Senate majority leader ask for unanimous consent to have the Senate consider the nomination. </p>
<p>Unfortunately for the president, Republican Senator Mitch McConnell (R-KY), the current majority leader, has issued a statement saying that Justice Scalia’s vacancy <a href="http://thehill.com/homenews/senate/269389-mcconnell-dont-replace-scalia-until-after-election">should not be filled</a> until after the November election. So McConnell appears unlikely to ask for unanimous consent to consider an Obama nominee.</p>
<p>If unanimous consent cannot be obtained (if it even is sought), the nomination can be considered if someone makes a motion that the Senate do so. </p>
<p>If the motion that the nomination be considered is made during a special “executive” session of the Senate, then the motion itself is debatable and can be blocked by <a href="https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate">filibuster</a> – that movie-ready delay tactic in which which a senator recites Shakespeare, <a href="http://nypost.com/2013/09/25/cruz-vows-to-speak-till-he-cant-against-obamacare/">Dr. Seuss</a> or recipes for fried oysters until everyone gives up and goes home. </p>
<p>Closing debate on the motion so that the Senate could move on to a vote would require a supermajority of 60 votes – again, unlikely given the current polarization of the Senate.</p>
<p>If the motion is made while the Senate is in its regular “legislative” session, then the nomination will be considered by the full Senate. But because of aforementioned arcane Senate rules, the vote on the nomination could also be blocked by filibuster.</p>
<h2>Step 4: The vote</h2>
<p>But let’s assume that the nomination does emerge from the Judiciary Committee, makes it to an “up or down” vote and weathers any filibuster attempts. </p>
<p>A vote to confirm then requires a <a href="http://fpc.state.gov/documents/organization/50146.pdf">simple majority</a> of the senators present and voting. If all goes well, the secretary of the Senate will transmit the confirmation vote to the president. </p>
<p>The president then can breathe a sigh of relief and sign a commission appointing the person to the Supreme Court. </p>
<p>But I wouldn’t count on it.</p>
<h2>The loophole</h2>
<p>If the traditional 4-step process fails, there is one additional possibility open to the president. </p>
<p>[<em>Understand key political developments, each week.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-understand">Subscribe to The Conversation’s election newsletter</a>.]</p>
<p>Article II of the Constitution also says that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate” and that the appointment can last until the <a href="http://www.scotusblog.com/2016/02/is-a-recess-appointment-to-the-court-an-option/">end of the Senate’s next session</a> – in this case, until late 2017. </p>
<p>A recess appointment would mean that the president could simply fill Justice Scalia’s seat temporarily <a href="http://www.nationalreview.com/article/431313/supreme-court-recess-appointment-will-president-obama-do-it">without any input</a> from the Senate. </p>
<p>As it happens, the Senate is currently in recess until February 22. What happens next is anyone’s guess.</p>
<p><strong>An updated version of this article is at <a href="https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544">https://theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544</a>.</strong></p><img src="https://counter.theconversation.com/content/54715/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caren Morrison does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There are just four steps to appointing a Supreme Court justice – but that’s not to say it’s going to be an easy process for Obama.Caren Morrison, Associate Professor of Law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547212016-02-15T03:31:47Z2016-02-15T03:31:47ZJustice Antonin Scalia: more quotable than influential<p>Justice Antonin Scalia will be remembered for his brilliant intellect, his acerbic wit and his insistence on interpreting law by reference to text and history. </p>
<p>He was long the intellectual leader of the conservative wing of the United States Supreme Court. However, he often seemed more interested in being a leader than in having followers. He was no coalition builder, and as evidenced by his losses in the court’s major decisions last term, his jurisprudence is, in my view, likely to have limited impact.</p>
<p>As someone who had the privilege of clerking on the Supreme Court (for Justice John Paul Stevens) during Justice Scalia’s tenure, I will continue to enjoy my memories of Justice Scalia’s dynamic interaction with clerks. As a professor of constitutional law, I will continue to study and to teach Justice Scalia’s incisive opinions. </p>
<p>When it comes to learning how courts actually interpret the law, though, the majority opinions on which my class focuses are unlikely to be those written by Justice Scalia. </p>
<h2>Champion of new conservatism</h2>
<p>Justice Scalia was appointed to the court by President Ronald Reagan in 1986 at a pivotal time for the conservative movement. </p>
<p>Throughout the 1960s and 1970s, judicial conservativism generally meant adherence to precedent and reluctance to invalidate legislative acts. However, the conservative movement of the 1980s sought instead to undo prior liberal decisions and to limit the power of the national government by rigorously scrutinizing federal statutes.</p>
<p>Justice Scalia served as a perfect champion of these new conservative ideals. He embraced <a href="http://www.heritage.org/constitution/#!http://www1.heritage.org/introessays/3/the-originalist-perspective">“originalism,”</a> the idea that insists that the Constitution must be interpreted by reference to its meaning at the time of its adoption. This approach rejects the idea that new rights may emerge over time. </p>
<p>He also endorsed <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/347.pdf">textualism</a>, which interprets statutes by focusing solely on their language, rather than the legislature’s overall purpose in enacting them. By refusing to attend to the purpose of legislation, textualism imposes a substantial burden on the legislature to draft complex statutes with exacting precision.</p>
<p>These interpretive swords of originalism and textualism allowed Justice Scalia both to attack liberal precedents that had strayed from what he understood as the Constitution’s historic meaning and to limit the scope of governmental power. </p>
<p>Justice Scalia swung his interpretive swords with notable gusto, and his style and substance achieved some notable victories. His colleagues, as well as advocates before the court, knew that references to legislative history, committee reports or other indications of legislative purpose would draw his ire. </p>
<p>Singlehandedly, he changed the way in which statutes were discussed in the United States Supreme Court.</p>
<p>Beginning in the 1990s, a new conservative majority on the Supreme Court limited the power of the national government, striking down or narrowing important federal legislation such as the <a href="https://www.law.cornell.edu/uscode/text/42/chapter-136/subchapter-III">Violence Against Women Act</a>, <a href="http://www.eeoc.gov/laws/statutes/adea.cfm">the Age Discrimination in Employment Act</a> and the <a href="http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf">Voting Rights Act</a>. </p>
<p>Writing for the court in <a href="https://www.oyez.org/cases/2007/07-290">District of Columbia v. Heller</a> in 2008, Justice Scalia relied on the original meaning of the Constitution in finding a Second Amendment right for an individual to possess a handgun. </p>
<p>In the <a href="https://www.oyez.org/cases/2008/08-205">Citizens United</a> case in 2010, the court upended decades of precedent to restrict Congress’ ability to regulate the financing of political campaigns.</p>
<h2>Limited victories</h2>
<p>But Scalia’s victories were limited. His style did not always ingratiate him with potential allies on the court. He did not mince words, and he attacked the opinions of other justices, liberal and conservative alike, with unusual ferocity.</p>
<p>In <a href="https://www.law.cornell.edu/supremecourt/text/492/">Webster v. Reproductive Health Services</a> in 1989, three years after joining the court, Justice Scalia famously attacked Justice Sandra Day O'Connor. In this important abortion case, Justice Scalia criticized Justice O’Connor’s opinion as “irrational” and argued that a particular assertion of hers “cannot be taken seriously.” </p>
<p>Three years later, Justice Scalia ended up on the losing side of <a href="https://www.law.cornell.edu/supct/html/91-744.ZS.html">Planned Parenthood v. Casey</a>, as Justice O’Connor coauthored an opinion for a five-justice majority reaffirming the right to an abortion. </p>
<p>In 2015, finding himself in dissent in the year’s most significant cases, Justice Scalia’s vitriol reached new heights. </p>
<p>He derided the majority opinion of Chief Justice John Roberts, which upheld certain subsidies under the Affordable Care Act or “Obamacare.” Referring to this and a previous opinion by the chief justice upholding the ACA, Justice Scalia <a href="https://theconversation.com/obamacare-victory-shows-failure-of-scalias-conservative-revolution-43890">sniped</a>,</p>
<blockquote>
<p>We should start calling this law SCOTUS care.</p>
</blockquote>
<p>Attacking the sometimes lofty rhetoric of the majority opinion by Justice Anthony Kennedy in the same-sex marriage case, Justice Scalia <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">wrote</a> that if he ever joined an opinion with that kind of language, “I would hide my head in a bag.” </p>
<p>And these were his comments directed at justices who generally voted with him.</p>
<p>While Justice Scalia’s caustic style may have been off-putting to some justices, what was more significant was that his interpretive approach failed to win over his colleagues. The last term of the court made that failure clear.</p>
<p>In <a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a>, a strict reading of the text of the Affordable Care Act would seem to have authorized federal subsidies only for health care exchanges established by states, not for those established by the federal government in states that refused to create exchanges. </p>
<p>If textualism had prevailed, the scope of federal power would have been limited, in this case by potentially gutting the ACA.</p>
<p>But Chief Justice Roberts instead applied traditional principles of statutory interpretation and looked to the overall purpose of the legislative scheme. </p>
<p>By a 6-3 vote, Scalia’s textualism lost, and the ACA won. </p>
<p>From the perspective of the six-justice majority, it made no sense to focus solely on the words of one section, instead of the larger goals of the legislation. In this approach, the court acts as Congress’ partner, not its censor.</p>
<h2>A mixed legacy</h2>
<p>Justice Scalia’s focus on beginning any interpretation with the text of a statute may endure, but his rejection of other interpretive guides never found a lasting home on the court.</p>
<p>Even in his lifetime, his brand of textualism could not earn majority support.</p>
<p>He changed how advocates and judges talk about statutes, but not how they ultimately interpret them.</p>
<p>His attempt to reorient interpretation of the Constitution similarly failed to achieve lasting success.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, for example, the case affirming a right to same-sex marriage, constituted a dramatic repudiation of Justice Scalia’s originalism. </p>
<p>For Justice Scalia, the disposition was easy: </p>
<blockquote>
<p>When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.</p>
</blockquote>
<p>But for the five-justice majority, the rights of loving couples to marry today could not be resolved simply by reference to the views of people who lived 150 years ago. </p>
<p>Contrary to Justice Scalia’s originalism, Justice Kennedy’s majority opinion understood the Constitution as entrusting to </p>
<blockquote>
<p>future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.</p>
</blockquote>
<p>The idea of a “living Constitution,” always anathema to Justice Scalia, prevailed.</p>
<p>Justice Scalia’s opinions, full of erudition, wit, and occasional vitriol, will long be quoted and will fill the pages of legal textbooks. But the memorable opinions will largely be dissents. </p>
<p>His lasting influence will be found in admirers off the court, not in adherents on the bench. He was the champion of a movement that achieved many of its goals but did not succeed in fundamentally reshaping the law in the United States. </p>
<p>He will go down in history, in my view, as one of the most quotable justices, but not one with the deepest impact.</p><img src="https://counter.theconversation.com/content/54721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Schapiro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The long-serving justice changed how judges talk about statutes, but not, argues one law professor, how they ultimately interpret them.Robert Schapiro, Dean and Professor of Law , Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/545112016-02-12T22:39:43Z2016-02-12T22:39:43ZThe Supreme Court just handed the next president a powerful lever to control U.S. climate policy<figure><img src="https://images.theconversation.com/files/111353/original/image-20160212-32308-1ifkmmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">By putting a temporary halt to Obama's cornerstone climate policy, the Supreme Court puts the next president in the driver's seat. </span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/tabor-roeder/5554035521/in/photolist-9sMTg8-pwoRPY-ct5639-xj8dC-fUJT36-pLGztn-eXMwpm-conrr3-6xavfj-btfutY-pVDtsm-APqHp-3P99ph-ro6AW6-oXceR9-peG69R-cjK2zL-7YWhrB-my1QAP-djzBuH-vdLfX-z5HAY-6x6kmn-etjK2-rbUh3s-6x6kaD-aofJU-9sMMC6-4bD4UB-pP6ZFb-mFPdVW-5Vnu54-5TPQZi-7tLNFt-aFfq3j-6K2mxv-5acLkp-eWs9A5-eVXHqp-4Q42k7-9s8LrU-H587R-aC9aKG-fp7JBQ-5ncCKb-9mNV9x-qUAkCS-5SB1T1-eVXHYK-27D3n">tabor-roeder/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Earlier this week, the U.S. Supreme Court decided to halt, at least temporarily, implementation of one of the central components of the federal effort to constrain U.S. climate emissions, the Clean Power Plan. </p>
<p>The decision <a href="http://legal-planet.org/2016/02/09/the-decision-to-halt-the-implementation-of-the-clean-power-plan-is-outrageous/">shocked</a> many court watchers, dismayed those in favor of strong climate action and <a href="https://theconversation.com/in-blocking-epa-clean-power-plan-is-the-supreme-court-wading-deeper-into-politics-54513">elicited comparisons</a> to the infamous Supreme Court decision in Bush v. Gore, with many saying that the court had once again abandoned judicial restraint and legal reasoning in favor of bald political gamesmanship.</p>
<p>In my view, this surprise and disillusion is warranted. Even for a court that has been clear in its <a href="http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf">worries about Environmental Protection Agency overreach</a>, the decision was unprecedented and seems not to be justified by the legal standard for granting these requests to freeze, or “stay,” implementation of a regulation. </p>
<p>These requests for a stay are rarely granted because they upend the <a href="https://supreme.justia.com/cases/federal/us/467/837/case.html">usual deference shown by courts</a> to expert agencies and short-circuit the deliberative process that is the hallmark of the judiciary. </p>
<p>And because of the legal process that needs to follow, the stay puts more control over the fate of the Obama administration’s cornerstone climate policy – the <a href="https://theconversation.com/us/topics/epa-clean-power-plan">EPA Clean Power Plan</a> – into the hands of the next president. </p>
<h2>How strong is EPA’s defense?</h2>
<p>The Clean Power Plan, which requires states to devise plans for reducing carbon dioxide emissions from power plants, has been <a href="http://www.washingtontimes.com/news/2015/oct/23/two-dozen-states-file-lawsuit-against-clean-power-/?page=all">challenged legally by more than 20 states</a> and energy companies. </p>
<p>The <a href="http://www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-order.pdf">Supreme Court’s stay</a> dealt a blow to the Clean Power Plan at a very early stage in litigation, coming before any lower court has had an opportunity to assess the validity of the challengers’ legal claims and many years before any emissions-reduction requirements would have gone into effect for power plants. </p>
<p>It is unclear why – and the court did not explain its reasoning – allowing the rule to remain in place as the litigation unfolded would have resulted in irreparable harm or how granting the stay furthers the public interest, both key elements of the relevant legal test. This is especially true because the courts have already put the litigation challenging the Clean Power Plan on an expedited track, meaning that just a few more months would have brought considerably better information for evaluating the merits of the rule.</p>
<p>Moving forward, the stay says something important, but nothing decisive, about the ultimate fate of the Clean Power Plan. The court’s five-to-four decision means that five justices concluded that the challengers have made a “strong showing” that they are “likely to prevail” in their underlying case charging that the Clean Power Plan is unlawful. </p>
<p>But it’s important to note that the arguments in that underlying case are not yet developed: there has been no briefing on the merits of the case yet, nor any oral argument, nor a decision on those legal merits by any judge. The D.C. Circuit will now take up the case and turn its attention to these merits, and my own view is that the EPA’s legal position is quite strong. </p>
<p>The heart of the case challenges EPA’s interpretation of a statutory phrase, “best system of emission reduction,” which is inherently ambiguous. Here, this refers to how states can reduce carbon dioxide emissions from power plants.</p>
<p>Historically, courts have given agencies like EPA wide berth to interpret and implement their governing statutes. And EPA’s approach here, which calls for emissions reductions from increased use of renewable energy and other readily available measures, seems well within the scope of what one might determine is the “best system.”</p>
<p>Once the D.C. Circuit issues a decision, whichever side has lost will appeal to the Supreme Court, which may or may not take up the case. If it does, the justices will look anew at a more fully developed record and reach conclusions independent of, and better informed than, their decision this week. Although a number of commentators have said the Supreme Court <a href="http://www.wsj.com/articles/pulling-the-plug-on-obamas-power-plan-1455148680">effectively ends</a> the EPA Clean Power Plan’s implementation, the court could still rule that it is legal.</p>
<h2>Next president looms large</h2>
<p>But the Clean Power Plan must do more than survive the next rounds of judicial battle in order to take effect; it must also survive the presidential election. Each of the Republican candidates has signaled a <a href="http://news.nationalgeographic.com/energy/2016/01/voters-guide-how-the-candidates-compare-on-climate-and-other-issues/">strong distaste for climate regulation</a>, and it is hard to imagine any of them embracing the Clean Power Plan in office. </p>
<p>Now that the stay has been issued, any Republican president in early 2017 will have an easy way to duck out of the Clean Power Plan, by instructing the Department of Justice to cease its vigorous court defense. </p>
<p>If the Supreme Court holds that the rule is not legal, EPA’s next steps will depend on the president, too. </p>
<p>A Democratic administration likely will reissue the rule to conform to whatever the court’s directives are, if that’s possible, and will simultaneously look to other pathways within the Clean Air Act (for example, to <a href="https://law.ucla.edu/centers/environmental-law/emmett-institute-on-climate-change-and-the-environment/publications/legal-pathways-to-reducing-greenhouse-gas-emissions-under-section-115-of-the-clean-air-act/">Section 115</a>) to achieve emissions reductions. With a Republican win in the next presidential election, by contrast, all bets are off for future federal climate change regulation. </p>
<p>My more glass-half-full Democratic friends wonder whether the silver lining in this week’s stay decision will further mobilize like-minded voters, as it’s more clear than ever how important climate champions in the executive and judicial branches are.</p><img src="https://counter.theconversation.com/content/54511/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Cara Horowitz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even before the death of Justice Antonin Scalia, the Supreme Court’s stay placed the fate of the EPA Clean Power Plan into the hands of the next president.Cara Horowitz, Co-Executive Director, Emmett Institute on Climate Change and the Environment, UCLA School of Law, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.