UB experts can discuss the implications of Justice Antonin Scalia’s death

Experts can discuss topics from the political conflict over whether to replace him, to his legacy and looming court cases

Release Date: February 16, 2016 This content is archived.

“What started out as fierce intellectual independence and fearlessness degenerated, in his later years, into anger, stridency, and closed-mindedness. In his worst moments, Justice Scalia wrote not to persuade, but to mock and disparage. ”
James Gardner, dean of the law school
University at Buffalo

BUFFALO, N.Y. – University at Buffalo faculty experts are available to discuss issues of national importance that have emerged after the death of Justice Antonin Scalia.

Political conflict has exploded over whether President Obama should attempt to replace Scalia in an election year, and whether the Senate should consider the president’s choice. Other emerging issues that UB experts can discuss include important Supreme Court cases that may split 4-to-4 now that the court is down to eight members, and what Scalia’s legacy was.

A partial list of available experts follows. Contact Rachel Stern at 914-815-5656 for additional experts.

James Campbell, University at Buffalo Distinguished Professor of Political Science:

There is no way that a replacement for Justice Scalia will be confirmed before the presidential election next November, says Campbell.

“Republicans have a majority of seats in the Senate and a majority is required to confirm a Supreme Court justice,” he says. “They will not cooperate with a lame duck liberal Democratic president in an election year naming a liberal justice who will redirect the court from its current balance to one inclined to rubber stamp liberal policies.”

The controversy is detrimental to relations between political parties, and to the American political process, Campbell says.

“This is a kabuki dance of political posturing,” he says. “President Obama sees an opportunity to win a confirmation battle and shift the court to the left, or renew charges that Republicans are obstructionists and opposed to whatever demographic group a rejected nominee belongs to.

“It is about politics, not fulfilling constitutional responsibilities.”

The inevitable Senate fight will make people even more cynical about politics, Campbell says.

“It further poisons the well for future political dealings,” he says. “It is throwing gasoline on the political polarization fires.”

James Gardner, University at Buffalo law school interim dean, and former law student of Justice Scalia’s:

While Justice Scalia made many important contributions to the Supreme Court’s jurisprudence, one of his other legacies was raising the level of incivility, says Gardner. 

“What started out as fierce intellectual independence and fearlessness degenerated, in his later years, into anger, stridency, and closed-mindedness,” he says. “In his worst moments, Justice Scalia wrote not to persuade, but to mock and disparage. 

“These writings have the unfortunate effect of legitimizing the use of uncivil language in judicial opinions, and it would be a shame if those who admire him for his virtues as a jurist mistakenly emulated this characteristic of his later work.”

Scalia evolved from an independent-minded intellect, to an angry curmudgeon, Gardner says, and this raises questions about life-time tenure for judges.

A limited term for appointed judges could help, he says.

“Loss of humility is an occupational hazard of judging,” Gardner says. “People who are treated constantly with the greatest deference on account of their office may eventually come to feel that deference is due to them as a person, for who they are and the opinions they hold.”

While Gardner was a law student at the University of Chicago, Scalia was his contracts professor.

“He was an entertaining professor and had a great sense of humor,” Gardner says. “He was quite a public speaker. He was funny and witty.”

With the court poised to be left shorthanded for a year, it will not be able to function very well, Gardner says.

In cases where there are 4-to-4 splits in voting, the lower court’s decision would be affirmed and the Supreme Court proceedings would be irrelevant.

“For those upcoming, high-profile cases, it is likely the Supreme Court will defer hearing the case until next term when they are at full strength,” Gardner says. “That means rulings on important matters will be delayed for another year at least.”

Lucinda Finley, University at Buffalo law school professor of trial and appellate advocacy. Finley has argued two cases before Justice Scalia:

There are some major, hotly contested cases that were likely to split 5-4, Finley says. In the absence of Scalia, some of those cases could be resolved in a 4-to-4 split, and then the decision of the lower court would stand, she says.

One of those cases that was recently argued was Fisher v. University of Texas. That case deals with affirmative action and whether race could ever be a factor at all in university admissions. Scalia’s comments during the case signaled that he was highly likely to vote against considering race as a factor in university admissions, Finley says.

“I think this further roils presidential electoral politics,” Finley says. “It will remind people of the Supreme Court and the power the court has to make decisions. The Supreme Court will now become a major issue in the upcoming presidential election. Before nobody was talking about the Supreme Court in the election, now it clearly will become a major campaign issue.”

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