We’re posting the transcript of this special joint Amicus and Political Gabfest podcast exclusively for Slate Plus members. What follows is the transcript of this first-ever joint episode, in which Amicus’s Dahlia Lithwick is joined by the Political Gabfest’s Emily Bazelon and David Plotz to discuss Justice Antonin Scalia’s death on Saturday.
Just two weeks ago, Amicus took a break from its usual court case lineup to discuss the effect this election will have on the Supreme Court, in light of the fact that four of its members were then more than 80 years old. Now, with the news of Scalia’s death, controversy has erupted over how—and if—to fill his big shoes. How will Washington handle the question of his replacement? And what about the legacy he’s leaving behind?
This is a lightly edited transcript and may differ slightly from the edited podcast.
David Plotz: The following podcast contains explicit language. Hello and welcome to a special edition of the Slate Political Gabfest and the Amicus Gabfest, or the Amicus Podcast, I should say, for Valentine’s Day, Sunday, Feb. 14, 2016.
We are, of course, here because Justice Antonin Scalia died yesterday. And so we’ve gathered Emily Bazelon of the Political Gabfest and the New York Times, and Dahlia Lithwick, host of Amicus and Slate’s chief legal correspondent. I think that’s your title, Dahlia. To talk about Justice Scalia, about his record as a justice, and about what is going to happen on the court and in politics now that we have an eight person Supreme Court.
So, Dahlia, let’s start with you. You sat in the Supreme Court many times and watched Justice Scalia. Just describe a little bit for those of us who never saw him in action and what he was like in the court.
Dahlia Lithwick: Honestly, he was exactly the way we all imagine him. Larger than life. Colorful. Giggling at his own humor. Often just kind of the bon vivant, but also a little bit of the truant. Ha-ha, look at me, I’m funny, funny, funny.
He was just a character on a court where, you know, for a long time you couldn’t tell Justices Souter, Stevens, Kennedy—they all looked the same. They all talked the same. And then there was just this big bombastic guy in the middle. And that’s what he was.
He was exactly the way if you even saw him for one minute, when he was schilling a book, or on TV, he was exactly that guy.
Plotz: What was your favorite moment of him in an argument that you can remember?
Lithwick: Oh, man. That’s not even.
Emily Bazelon: So many choices, David.
Lithwick: Yeah. I mean, Emily, can you even think of a favorite Scalia moment? I can certainly say the one that is most vivid to me right now is the one that’s vivid to everyone which was, you know, in the oral arguments in December around the Fisher case. The affirmative action case.
And suddenly, you know, Scalia was kind of parroting what sounded like the most racist iteration of a theory that has some legitimacy, but the way he talked about, “Well, you know, maybe African Americans should go to lesser schools.” And it was a classic Scalia, because he could have said it in a million different ways.
He chose to say it in a way that poked his thumbs in the eyes of—you know, sitting a few feet away from Sonia Sotomayor and Clarence Thomas. So, yeah, I think that for me, that’s at least right now frozen in amber. Not because I think it wasn’t legitimately briefed, it wasn’t a legitimate issue, but he chose to say it in a way where he almost knew there would be blowback.
Bazelon: And don’t you feel like in the last couple of years that was happening more and more in his writing and his public appearances?
That he was giving the most extreme versions of his skepticism about gay marriage, or his dismissal of the continuing legitimacy of the Voting Rights Act. There were just—it got so caustic and dyspeptic, don’t you think?
Lithwick: I do think. I think that’s exactly right.
And I think that even though if you look back, he’s been writing this way for 20 years, certainly the effect on the bench starts to change. I think, you know, there’s lots and lots of snark. I’m thinking about the first Obamacare cases where he’s making glib references to broccoli and to the Cornhusker’s kickback, and all the kinds of things you would see Rush Limbaugh do, but not Antonin Scalia.
So I think there was a big uptick in recent years, not just in the caustic writing, but the behavior both on the bench and I think in the media that suggested that he fully crossed the line into Fox News pundit.
Plotz: Emily, Judge Richard Posner, who is no slouch himself, said that Scalia is the most influential justice in the past, I’m not sure, but past significant amount of time, choose your significant amount of time.
There seems to be general consensus this morning among both his ideological allies, and his ideological foes that he was the most influential justice in recent years. What is it? Why? What is it that he did that is so influential?
Bazelon: The main thing he did was to come up with or really promote the theory of originalism.
So the idea that when the justices and courts generally are interpreting the Constitution, they should go back to the understanding of the people who wrote the phrase or the clause that is central to the case. He was completely the public face of that theory, even though in a lot of ways Justice Thomas is really much more faithful to it, and Scalia has admitted himself that there are particular lines of jurisprudence in which he didn’t follow originalism, especially in terms of civil rights he adhered to Brown v. Board of Education, even though it’s pretty clear that the drafters of the 14th Amendment were not trying to desegregate the schools at the time.
So then he wound up calling himself a feint-hearted originalist, which you could either say kills off the whole theory, because it introduces inconsistency, or that it was his way of, as he said, making sure that he didn’t seem like a nut. That contribution to legal thinking, and the degree to which he has pulled conservatives on the court in that direction and his rejection of legislative history, of looking at what the Senate or Congress was thinking about supposedly, or talked about in the record before they passed a law.
He didn’t like that. Those were really important contributions. And then I think the last thing is just he had such a strong personality. He is so sure of himself. He is such a pleasure to read often because he is really trying to write for a wider audience, to bring in humor, and yes, snark, but to make it entertaining.
And I think all of those things just combined to make him a really explosive force on the court.
Plotz: There was this wonderful moment in the Republican presidential debate on Saturday night when Marco Rubio said, and I don’t know why I was so surprised, but he said, “The Constitution is not a living, breathing document.”
Bazelon: That was hilarious. Right. Because you usually don’t say that. And the Constitution is dead.
Plotz: And you’re like, “Uh-huh, I guess that’s what you think.”
Lithwick: I would push back on one thing. I think, I agree with everything Emily says, but I think it’s probably important as we think about, you know, name five important Scalia majority opinions. It’s hard to, right. We’ve got Heller. We’ve got the guns case. We’ve got a few over the years, but I think it’s important just responding a little bit to Emily’s argument that he pulled the court’s conservatives with him.
You know, interestingly I think he only probably has Clarence Thomas with him. I think there’s only one originalist left on the court. I’m not sure that either Sam Alito or Chief Justice John Roberts would call themselves originalists. They’re much more pragmatic. And so there’s a weird way in which even though he’s created this frame in which we all operate, it’s not clear to me, a) that it’s going to be lasting.
It might be completely ephemeral. And, b) it may just be like, here, here’s a little nod to originalism, you know. Go Nino. But, I’m not sure that in the long, long run we’re going to be able to say that he really brought everyone online as originalists or as textualists, because it looks to me that there’s not a lot of originalists on the court.
Bazelon: And yet politically speaking and in the academy we do see the prevalence of originalism, right?
And in some ways, I think we should also mention that Scalia could be his own worst enemy, because he could be quite vicious in attacking Justice O’Connor when she was on the court, and Justice Kennedy there in the center. And so sometimes one wondered if he had actually cost himself a majority or at least failed to build toward one by being so critical.
Plotz: Dahlia, one of the things that’s striking about Scalia in all the accounts of him, and I’m sure you observed this intimately, is that he famously had this friendship with Ruth Bader Ginsburg with whom he shared very little ideologically.
And people pointed at that friendship as an example of look how Washington can work effectively and why doesn’t Congress—why isn’t Congress like that? Why doesn’t Obama have friendships like that? Do you think—is that friendship that he had with Justice Ginsburg, is that meaningful?
And, also, are there any lessons for the rest of Washington? Or, no, it has nothing, it actually doesn’t, because there’s no actual political import of such a friendship that would make Washington work better?
Lithwick: It’s so funny, David. I get that question almost every time. I’m sure Emily gets it a lot, too.
How can these two be friends? How can they be friends? And so it’s exactly on point. And I think what’s interesting is it kind of cuts both ways. On the one hand, I think—I really do think, particularly now when we’re starting to see the Chris Hitchens slash and burn obits starting to pop up, that the fact that they were friends, that they reached across the aisle, that they could get past their ideological differences does speak well of both of them.
I think it goes to something profound that happens on the court. The flip of that is, and I guess I’d be curious what Emily thinks. It also just tells me these people need to get out more. I mean, this is just a strange little bubble of a world where if you only get to be friends with eight other people and their spouses, I guess you have to learn to get along.
And so there’s a strange way in which it both goes to this institution which, look, at heart it’s about coming to agreement across divides and using facts and argument to do that, and all of that good stuff that leads us to not necessarily bonk one another on the heads. But I think that the flip of it really is this is a tiny little D.C. world. This is a tiny little company town with a very little company.
And these justices sort of have managed to transcend the kinds of strife that you see in Congress. In part because I just don’t think they have a lot of other choices.
Plotz: Emily, do you want to jump on that, or no?
Bazelon: Well, I was just going to add that I have always felt like Scalia and Justice Ginsburg were very proud of this friendship.
And a little bit paraded it around. Not, I think, I’m not suggesting they weren’t really friends, but it seemed like this badge of honor to both of them that they could cross lines. And maybe we just can’t see the results of this in the jurisprudence and it’s there, and if only I knew these backstories of their greater collaboration and understanding I would understand how it has shaped the law.
But it doesn’t seem that way to me. It seems to me like they enjoy each other’s company. They like to go to the opera together. Scalia was by all accounts a lot of fun. And Ginsburg has her wry sense of humor. And I’m not sure what else we’re supposed to conclude from that, other than like, yes, it is great when people can have friendships across political lines.
But how that translates into something that is useful for Congress or to Washington, I’m more uncertain.
Lithwick: You know, one tiny little coda to this. I was just reading the— whatever the statement was that Justice Ginsburg just released about Scalia. And it was interesting.
She said she loved having the opportunity to see drafts where he trashed her opinions and she says I loved applesauce. I loved when he called me argle-bargle. And it made me think, I guess, maybe the one lesson is that we all need to be a little bit less thin-skinned.
That if she could go through the Antonin Scalia thresher and come out the other side and say, “Hey, not only do I love that, but I appreciate it and my opinion is now better for it,” then maybe there’s a little bit of a lesson there about not being quite so frantic when somebody criticizes us.
But maybe if that’s the best we can do here, then I don’t know. Maybe nobody wants to be argle-bargled.
Plotz: Emily, before we get to the who-comes-next, explain to those of us who are not steeped in Supreme Court-ology what happens with a court that has an even number of members.
What happens to—are they going to continue to argue all the cases that have been briefed to them? What happens if they split four-four? What kinds of things can the court do or not do when it’s an even, not-full court?
Bazelon: Right. Let’s open up the hood of the car and poke around inside.
And, Dahlia, you can correct me if I mess any of this up. They could put off some of the big cases until next year if they choose. They can do whatever they want. But there’s no reason that the court can’t operate with eight people. When they tie four-four, if they do, that affirms the decision of the court of appeals that had the case before them.
And so that generally is a result that follows along with the status quo, right, because the appeals courts are not supposed to be making brand new constitutional law. They’re supposed to be following prior Supreme Court precedent. And so built into the result of a four-four tie is a kind of move toward greater stability.
And then the other thing is, of course, they can split five-three or whatever. And then you have a majority. And you have the same authority that comes with that majority opinion as you would on a nine-member court.
Plotz: And, Dahlia, do you get the sense that—it’s early, yet, and of course the court hasn’t even come back in session, but do you get the sense that they’re going to just continue operating with the eight of them, and continue taking the docket that they’ve got?
Lithwick: Well, I think that given the messages that they’re getting from the Hill, it would be crazy to say, “Hey, let’s wait until someone is confirmed in 2092.” So I suspect—
Lithwick: I think that if ever they were waiting for signals that maybe Justice Scalia’s seat would be filled soon, they’re probably not getting that message right now. So, yeah, I think it’s happened before. It’s not uncommon to have eight justices. It’s incredibly difficult for the court to function for any length of time this way, because as Emily says you’re going to get a lot of 4-4.
And what that’s going to mean is that it’s entirely possible that after June, abortion restrictions that are permissible in the Fifth Circuit will not be permissible in other courts. And that’s exactly the kind of weird checker board that you don’t want to have in the country.
Plotz: Is it still that five justices are needed to take a case?
Lithwick: You need four.
Plotz: Oh, oh, oh. And that does not change, sorry, even with eight. It’s still four.
Plotz: Okay, let’s go to the future. So, Dahlia, you know, there have been just wonderful lists of names that people are floating, then you have presidential candidates and congressional leaders saying this president cannot appoint the next justice. He shouldn’t do it.
It’s pretty clear that we’re headed, if President Obama appoints someone, for a massive fight or simply “delay, delay, delay” as Donald Trump put it. And even a next democratic president with a divided senate or a republican majority senate, it will be a massive fight, too, because we haven’t had the possibility of an ideological flip in the court since I guess Thurgood Marshall died.
Is that right? Isn’t that when the court when to a majority Republican?
Bazelon: 1972, actually, is the last time there were a minority—wait. 1972 is the last time there was a majority of Democratic appointees. So it’s pre—it goes all the way back to the beginning years of the Burger court.
What’s confusing is you had people like David Souter and Justice Stevens and Justice Blackman who were like liberals but they were all appointed by Republican presidents.
Plotz: Wasn’t it really that when Marshall died that that was the vote that really flipped it. Since Marshall’s death it’s been—or Marshall retired …
Ideologically, well, or arguably O’Connor to Alito. But if you’re talking about partisan politics, like which party has the appointments, it goes all the way back.
Plotz: But Dahlia, so if President Obama makes an appointment, which it sounds like he will, what happens then?
Does the Senate have to vote on it? How would the Senate deal with it? Does it have to reject it?
Lithwick: I guess we’re going to find out. I mean, I think that right now the word we’re getting is like we’re simply not going to approve anyone. So, by that metric, I guess, that the Senate can just say, no, we’re not going to do this at all.
And really it’s probably worth pointing out that this could even happen after next November’s election. We could still have a situation where nobody gets cleared. Emily wrote a really good piece that she should talk about, just talking about how so many of these rules, you know, the Thurman rule, and the filibuster rule, they’re just norms.
They’re not enforceable. You can’t make people do things they don’t want to do. And, conversely, you can’t force anyone in the Senate to adhere to these gentlemanly traditions that they just choose not to adhere to.
And so I think the interesting question here is if this really does proceed with complete 100 percent knockdown obstruction, are there any alternatives at all for Obama?
Plotz: Emily? Are there any alternatives at all for Obama?
Bazelon: I don’t think so.
So this is both totally dysfunctional and completely understandable politically speaking. I mean, for Mitch McConnell, for anyone in the Senate who is worried about a primary challenge from the right, and certainly for presidential candidates like Ted Cruz and Donald Trump, it totally makes sense to say, “No, we’re just going to delay this.”
Unless the polls show that Americans so disapprove of that view, that there’s a political price to pay for it. So, I felt like what the Republicans in the Senate and running for president said over the weekend was the smart opening bid.
It will also, I would imagine, push Obama to nominate a centrist, someone who has been recently approved by the Senate unanimously, or nearly unanimously for a court of appeals seat, because that’s a way of saying, “Well, hey, I’m giving you someone who was acceptable to you, you know, yesterday. What’s wrong with them right now?”
But unless the Republicans really feel the political heat and the risk of being obstructionists, I don’t see any sort of constitutional remedy. And so I feel like what we have here is one of those moments where the constitution is not quite functioning the way it would if we were writing it, you know, ten years ago or 50 years ago for the sort of partisan politics we have.
It just doesn’t really seem like a good match for this moment in history if you think there should actually be a full complement of justices on the Supreme Court in a timely fashion.
Plotz: If you were a centrist Obama-appointed appeals court justice judge who’s been nominated for the seat in this year, would you accept the nomination?
I mean, you’re clearly not going to get approved. Is he going to be able to find someone who is willing to be nominated for a Supreme Court seat they’re never going to get to hold and they’ll probably—I mean, they may not ever get a vote. And even if they get a vote, they’re definitely not going to get approved because of the politics.
Lithwick: Right. And then they spend the next nine months of their lives on hold, getting told how much they suck. And trying to figure out—
Bazelon: That sounds really fun. Where can we all sign up? On the other hand, we don’t know this person won’t get through.
Lithwick: They should pay someone—they must be able to buy someone who will do that. You know, just buy a guy. Just rent someone. I’ve got a nice babysitter. I don’t know. But, I mean, they’ve got to find someone—
Bazelon: Someone has to take it for the team.
Lithwick: Someone’s got to just do it.
Plotz: But, Dahlia, seriously. Who will they find who would be willing to do it? I mean, unless you think, unless that person figures, okay, maybe I just won’t get a vote and then I can pretty much count on President Clinton renominating me in 2017.
Lithwick: So, can I make a semi-serious point since it’s certainly time for me to do that. I think that this goes back to what I was trying to say about how that small, small incubator that is the Supreme Court bar and the Supreme Court—you know, the attorneys who argue there, the clerks, the appellate practices here in D.C.
And I think one of the things that becomes interesting when you think about this, having just said it’s way too insular, right. This entire court is comprised of people who come up out of the same three job descriptions, but I think when you have people like Sri Srinivasan, whose name is being floated, or Patty Millett, whose name is being floated, these are people who come up from the same culture, right. They’ve clerked on the court.
They have argued before the court. The justices know them. These are repeat players. I think it gets very, very difficult if you’re going to reach out and say, “Hey, let’s try Deval Patrick, you know, let’s take a flier on Pamela Harris.” Those people are completely unconfirmable. But I keep wondering if the reason that Sri passes through his own confirmation hearings for the appeals court by a 97-6 margin, or Patty gets through by a similar margin, I think the reason that it’s very, very, very hard to vilify and politicize your family.
And so maybe that’s the way through this is to get somebody who it’s just really hard to say hateful things about somebody who has argued 50 cases at the court. And if I’m right about that, then the pipeline to the Supreme Court, which is already so narrow that you can barely push a pin through it, will in inexorably get narrower. But it seems to me that that’s one way out.
Bazelon: Well, or that it narrows for this particular appointment. That the kinds of people you’re talking about are Judge Kelly in Iowa who is a Democrat who got through easily with Chuck Grassley’s support in the Senate.
If any of those people will accept the nomination, despite David’s skepticism, then that’s the play. And you see what happens. And I don’t think it’s a done deal that they won’t get through. I think it’s possible that people will just be outraged by utter obstructionism in a way that will get embarrassing for the Republicans and they’ll back down.
And then, yeah, it’s also possible that if the Democrats win in November, then this person’s nomination would be held over and they would come up then. And either way, it’s a fight. We have a big political struggle over the future of the Supreme Court. And everybody talks about it and thinks about it and decides how much they care about it when they go to the polls in November. So, that’s the ultimate check the constitution has given us against utter disarray.
Lithwick: And I would just say that, Emily, just to add one gloss to what you’re saying, because I really think it’s important.
If you think about the complete disparity between the ways in which the political right in the country has focused and organized and campaigned on the Court, and the way the political left in this country has kind of been like, “Yeah, that is certainly the 17th most important thing going into this election—“
Lithwick: It is really upending the status quo, because for a lot of progressives, they’re going to have to say, “Holy God, the court really is the most important thing going into this election.
And, by the way, look at what’s happening with abortion rights in Texas if you don’t believe me.” That creates an urgency and a real sense of I better fall in line that we have not seen on the left of this country since certainly before the Meese revolution.
Plotz: That was going to be my last question, Dahlia, was just if you guys were betting people on this presidential election, do you think—presuming that President Obama has not gotten through a nominee, I mean, one thing might be if you’re a Republican to let him get a nominee and gin up outrage for the presidential election.
That people will come out and vote. They’ll come and vote for you because they’ll be so outraged that he got his nominee. That may be one strategy. But let’s say he doesn’t get his nominee through, who benefits politically? Whose voters are going to show up? Because it seems like both sides will be heavily animated by it.
Lithwick: Again, I think that there’s really a machine on the right.
I mean, you’ve listened all through this entire campaign to Ted Cruz just battering away at the Supreme Court. This is his big talking point, right? He hates John Roberts because he’s a liberal.
Bazelon: Poor John Roberts.
Lithwick: I know. But I think that this is an amazing moment. If Hillary and Bernie want to seize it. If Obama really wants to do the thing he has not done with his prerogatives in power, which is say, “I will stand here in the Rose Garden and do the thing that George W. Bush did, which is put a bomb throw on the court and fight for them.”
You know, he can choose to do that. We have not seen that from him. Historically, this has not been one of his big issues. He has really—I think it’s fair to say put up moderate left candidates where he could have put up Scalias of the left. And now he’s got to really make a decision about whether he wants to be in this fight.
If the legacy that really will, I think, swing the court in a profound we haven’t seen, if that really matters to him, he’s going to have to find a voice to do that.
Bazelon: I feel like the moderate left choice this time around, and then really pushing for it, is the way to go. I mean, both Justice Sotomayor and Justice Kagan, Obama’s choices, who at the time when, you know, they were going through the confirmation I had my doubts about how strong they would be as real liberal voices based on their records.
I feel like they have both done what Obama promised us they would do. And I would assume that Obama feels really good about those choices. So, I guess to me it’s less about how far to the side of the political spectrum he goes, and more about how much energy he puts behind really emphasizing to the American people that if the Republicans are going to block this thing for more than a year, basically, that is unprecedented.
Plotz: We’re going to end it there. Thanks for listening today. This special Amicus and Slate Political Gabfest was produced Jason De Leon with help from Lauren Mayer and Dan Bloom.
You can follow the Gabfest at @slategabfest on Twitter. Dahlia, where do we follow you at? Is there an Amicus Twitter account?
Lithwick: I don’t know. You just get out your stone tablet and your little bird with the long beak. I don’t know, David.
Plotz: OK. Just follow that for Dahlia.
Bazelon: That will go well for you.
Plotz: And you can look for the Gabfest at Facebook.com/Gabfest.
Most of all, I want to emphasize like this is a huge story, Scalia’s death, what’s going to happen with the court, and how it effects the campaign. This is going to be something that Slate and Slate’s podcasts and Panoply’s podcasts are going to be covering like crazy. And the Political Gabfest will, of course, be covering this like crazy. And Amicus will be covering it like crazy. So you should get both of these podcasts if you don’t already.
If you’re an Amicus listener, you should subscribe to the Slate Political Gabfest. If you’re a Slate Political Gabfest listener, you should subscribe to Amicus. And you can look for our feeds in the iTunes store. Look for Political Gabfest or Amicus. For Dahlia Lithwick, Slate’s chief legal correspondent, and Emily Bazelon of the New York Times Magazine, I’m David Plotz. We will talk to you soon.