“You have enemies? Good. That means you’ve stood up for something, sometime in your life.”

— Winston Churchill

Antonin Scalia (Justice of the United States Supreme Court (1986-2016)

Antonin Scalia has died at the age of 79 which may potentially result in massive political skirmish for over the next year, and the outcome can have a significant impact on global legal trends.

The implications do not directly connect to the field of intellectual property, but as it will become clear later on, lawyers all around the World should mind who will fill the suddenly emptied seat.

The United States Supreme Court (SCOTUS) is a quite peculiar institution. When it was created in the foggy times of the founding fathers even the most far seeing eyes could not have told that this body will have a huge effect not only on the lives of millions of Americans but citizens of other countries as well.

The Court created the whole concept of judicial review, the “clear and present danger”doctrine in relation to the freedom of speech, the then-liberal Hughes court made it possible for Roosevelt’s reforms to come through, it also set up the necessary aspects on when and to what extent can a fundamental right of a citizen be infringed, which was later implemented in European constitutional courts in the form of the so called “necessity and proportionality test”. Every year the court decides on hundreds of massively significant cases – lobby groups try to reach some justices instead of congressmen and senators, and it is a usual sight that the First Street is filled with demonstrators on a day when a decision is expected to be rendered.

A cheering couple after the SCOTUS rendered its decision in case Obergefell et. al. v. Hodges et. al (2015)

It is a well known fact that the United States Supreme Court is partisan, i.e. politically divided on almost every issue to be solved by that. All the recent key decisions in the past years came out in a 5:4 ratio, where the swinging vote is Anthony Kennedy’s, and Scalia being the leader of the four justice conservative coalition.

The members of the Supreme Court in 2010

As justices are appointed for life, the fact that no politically neutral candidate has any chance to become justice (even federal judge), and if they retire they plan the date extremely carefully, the issue of finding the right predecessor can influence the whole general political landscape of the United States for decades to come. Thus it is not at all surprising that the race has already begun and finding the new member of the SCOTUS will be a top priority for both Democrats and Republicans.

Antonin Scalia was born in New Jersey in 1936 and graduated from Harvard in 1960. He was appointed to Justice by president Reagan in 1986, succeeding another very characteristic justice, William Rehnquist, who then was appointed to Chief Justice of the court. During his thirty years in service he became one of the most dividing member of the court, and he was also known for not hiding his emotional side when it came to a case. “It could be cut down [from thirty] to ten pages if Scalia omitted the screaming” – commented Harry Blackmun on Scalia’s dissenting opinion in Morrison v. Olson.

There was a surpriseless consistency – sometimes even boredom – in his decisions, concurring opinions and dissents as well. As a conservative justice he was anti federal government, anti-abortion, anti-euthanasia, anti-gay, anti positive discrimination member of the SCOTUS supporting the capital punishment, the broadest interpretation of the Second Amendment equaling unrestricted access to guns, and the uncontrolled and unlimited campaign funding by huge corporations.

He had one quite original concept though. Scalia was a radical textualist in constitutional interpretation, believing that the ordinary meaning of the statute should prevail all the time. Scalia warned that if the concept of “living constitution”becomes widely accepted “the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views.” “The use of legislative history is illegitimate and ill advised in the interpretation of any statute.” He also received lot of criticism for that attitude, since it does not result in the inevitable desegregation of schools laid down in Brown.

Speculation has already started on how the shift in SCOTUS decisions can be expected with special regards to the Fourth Amendment.

Obama declared that he will definitely nominate someone, meanwhile Republicans claim that he is not entitled to do that as a lame duck president. “I plan to fulfill my constitutional responsibility to nominate a successor in due time” – Obama said. “We are one justice away from the supreme court taking away every single restriction on abortion and mandating abortion on demand […] up to the moment of birth.” – panicked senator Ted Cruz.

A 60 vote majority is required to elect a justice, but interestingly the Senate is less partisan then the Court, so unexpected outcomes cannot be ruled out. Delaying the election can backfire on the Republicans as well, since a Democrat Senate can elect an even more liberal candidate than a compromise before the election. Interestingly Donald Trump is willing to nominate a liberal judge.

These are certainly exciting times to come for law and politics-geeks. One potential candidate is Sri Srinivasan, Court of Appeals for the District of Columbia Circuit, the potential first Indian-American (and NOT native American) justice. This factor is quite considerable in the United States where family or minority background can have a quite pressing influence on who takes the seat than others. Scalia was not opposed too much by Democrats, as he was the first Italian-American member of the Supreme Court.

Pintz & Partners

Iconic conservative justice Scalia dies at 79