Where Scalia’s Vote Was Decisive

(Photo: AP)

Supreme Court Justice Antonin Scalia and Chief Justice John Roberts in 2010

To understand just how much Justice Antonin Scalia’s replacement could matter, consider the list below of his most important 5-4 majority votes against liberal values, spanning his tenure on the Supreme Court. If a liberal had occupied his seat over the past three decades, American law and society would be substantially different.

Some common, overlapping themes emerge from the list: Scalia’s indifference to racial inequality; his chipping and chopping away at two means of carrying out liberal legislation—federal regulatory authority and private lawsuits vindicating federal rights; and autonomy for state and local governments. These were not Justice Scalia’s most closely held values, but they were the causes for which he was most consistently able to get support from four colleagues on the Court. So these are areas in which a more liberal replacement could have a strong impact.

McCleskey v. Kemp (1987): In Justice Scalia’s very first year on the Court, he joined this 5-4 majority opinion holding that powerful evidence of race discrimination in death-sentencing did not amount to an actionable violation of the Equal Protection Clause.

Harmelin v. Michigan (1991): The Court upheld a life sentence for cocaine possession and greatly narrowed Eighth Amendment “proportionality review,” under which criminal penalties may not be disproportionately harsh in light of the underlying offense.

Adarand v. Peña (1995): The Court greatly narrowed the use of race-conscious affirmative action by declaring “strict scrutiny” to be the appropriate test of its constitutionality.

Seminole Tribe v. Florida (1996): Much of Congress’s power to enact statutes is under the Constitution’s Commerce Clause and related provisions of Article I. In this case, the Court held that such legislation cannot subject states to federal lawsuits. The result is to undermine congressional regulation of states.

Printz v. United States (1997): Scalia wrote the majority opinion in this case holding that while federal statutes may instruct federal officials to carry out regulatory tasks, Congress may not similarly control state officials in many situations. So in the Brady Bill, Congress could not require state or local officials to carry out gun purchase background checks.

Alden v. Maine (1999): The Court followed up on its decision in Seminole Tribe v. Florida, ruling that Congress acting under Article I power can’t authorize suits against states in state as well as federal court.

Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999): The Court put additional nails in the coffin of congressional Commerce Clause authorization of lawsuits against states.

Kimmel v. Florida Board of Regents (2000): Congress can’t authorize lawsuits against states for age discrimination, either.

Boy Scouts v. Dale (2000): The Court held that under the First Amendment, states cannot compel a private association (in this case, the Boy Scouts) to stop discriminating against LBGT people.

U.S. v. Morrison (2000): The Court struck down key parts of the Violence Against Women Act of 1994, holding that those provisions exceeded congressional power both under the Constitution’s Commerce Clause and under the enforcement provisions in Section 5 of the 14th Amendment.

Bush v. Gore (2000): In one of its most obviously result-oriented decisions, the Court effectively chose our next president and therefore who would choose the next members of the Court.   

Alexander v. Sandoval (2001): This case involved recipients of federal money, such as states and localities that get federal grants. The Court held that no private lawsuits can enforce the federal regulation that bans such recipients from adopting policies and practices that create a racially disparate impact.

Gonzaga University v. Doe (2002): The Court narrowed the basis for private lawsuits under federal statutes.  

D.C. v. Heller (2008): With Scalia writing the majority opinion, the Court held that the Second Amendment confers an individual, and individually enforceable, right to possess guns.

Ashcroft v. Iqbal (2009): The Court declared “conclusory allegations” insufficient to support many lawsuits; the result is that plaintiffs must begin their lawsuits by offering very specific facts in support of their claims of misconduct, which they often cannot do before litigation’s discovery process.

Citizens United v. Federal Elections Commission (2010): The Court reshaped the U.S. political system, largely deregulating campaign spending and allowing unlimited infusions of money by individuals and corporations.

Connick v. Thompson (2011): The Court narrowed the liability of prosecutors’ offices even for egregious misconduct.

AT&T v. Concepcion (2011): In an opinion written by Scalia, the Court undermined consumers’ ability to bring lawsuits or group arbitration cases. Consumer contracts—like the one you agree to when you buy a cell phone—often require that disputes or accusations of illegality be resolved in individual arbitration, rather than group arbitration or either individual or class litigation. With each consumer harmed only a little bit—a dollar, or a thousand dollars—only aggregation in a group matter gives anyone sufficient incentive to bring a case at all. That’s why, in some states, such agreements were disallowed. Scalia’s opinion for the Court interpreted the Federal Arbitration Act of 1925 to disallow state law that insisted that some aggregated avenue of redress remain open. The result is that businesses can often practically immunize themselves from damages by carefully drawn consumer contracts.

Wal-Mart Stores, Inc. v. Dukes (2011): In another 5-4 Scalia majority opinion, the Court put one more major obstacle in the way of class-action suits—this time, particularly civil-rights actions. The decision shut down a nationwide, all-at-once sex discrimination lawsuit by the million-plus women who had worked or were working for Walmart. Instead, the women—and others like them in other lawsuits—would have to conduct litigation in far smaller, more individually fact-intensive forms.

Shelby County v. Holder (2013): The Court struck down the Voting Rights Act’s preclearance requirement, under which Southern and some other states and local governments were required to get federal “preclearance” before implementing any changes to their voting laws or practices. The result has been a plethora of minority-suppressing voting rule changes.

Burwell v. Hobby Lobby (2014): Under the Religious Freedom Restoration Act, closely held for-profit corporations are exempt from the Affordable Care Act’s contraception mandate. 

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