Antonin Scalia’s Death Opens Up a Supreme Court Seat, and the Republicans Want to Keep It That Way

TIM SLOAN/AFP/Getty Images
TIM SLOAN/AFP/Getty Images

Antonin Scalia, the hard-core conservative U.S. Supreme Court justice who said, among other things, that blacks might want to attend “slower” schools because they may do better there, died Saturday morning, just hours before the Republican presidential candidates pledged at a debate that if they got to be president, they would put somebody on the court just like him.


Here’s his widely denounced statement from the bench, from December, on a pending case dealing with affirmative action in college admissions (Fisher v. University of Texas):

There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them … I’m just not impressed by the fact the University of Texas may have fewer [African-Americans]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.

And here’s what he told a magazine in 2011 about sex discrimination and the law:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

With this kind of record of intolerant speech and thought—Scalia was a believer in applying so-called original intent to the Constitution—it’s not surprising that black legal leaders, the descendants of those Africans enslaved by the founding document, did not mourn him in the sincerest terms. The NAACP Legal Defense and Educational Fund and National Bar Association released respectful statements, as did the always-polite-when-it-comes-to-white-people President Barack Obama, who, as a lawyer, somehow found it within himself to eulogize the Supreme Court justice as “one of the towering legal figures in our time.”

While Obama said Saturday night that he would nominate a candidate to replace Scalia soon, all of the six remaining Republicans who are fighting one another in South Carolina, the site of the Feb. 20 Republican presidential primary, understandably said that the job should go to the new president.


Presidential nominees for the Supreme Court have to be approved by the U.S. Senate. Donald Trump said that he hopes Senate Majority Leader Mitch McConnell (R-Ky.) will “delay, delay, delay” that nominating process until next year. Earlier Saturday, McConnell said the Senate, under his leadership, is indeed planning to do just that. “The American people‎ should have a voice in the selection of their next Supreme Court Justice,” he said in a statement. “Therefore, this vacancy should not be filled until we have a new President.”

Democratic presidential hopefuls Vermont Sen. Bernie Sanders and former Secretary of State Hillary Clinton stressed that Obama has the right, responsibility and the time to name a Supreme Court nominee.


So the battle, as it is, is joined. Obama—the lame duck who has already named two Supreme Court justices, Sonia Sotomayor and Elena Kagan—will nominate somebody who will not be a Tea Party conservative, and the Republicans, deep into a presidential election year, will laugh out loud. Liberals, particularly those of African descent, will be outraged by this millionth show of disrespect for the first black president, and conservatives will be emboldened—until, that is, the latter loses the presidency again.

This process of naming a candidate to the U.S. Supreme Court, which determines national law for decades, is what scares citizens into holding their noses and voting for the lesser of two presidential evils every four years. Before last night, the court was evenly divided between conservatives (Scalia, Chief Justice John Roberts, Clarence Thomas and Samuel Alito) and liberals (Sotomayor, Kagan, Ruth Bader Ginsburg and Stephen Breyer), with Justice Anthony Kennedy, an appointee of Ronald Reagan, swinging one way or the other, depending on the issue. Now the table is wobbly, and perhaps in a good way.


Numbers are key. When Scalia, who was 79, was counted in, the average age of the eight remaining Supreme Court justices was just under 70. Before Scalia’s death, three was the magic number of appointments the next president could possibly make as a result of retirements or deaths, according to pundits who think about this stuff. All that might change now.

The future of the court will now dominate the headlines, with pesky issues like social justice for African Americans having to fight for space, even in South Carolina’s upcoming Feb. 27 Democratic primary.


The Congressional Black Caucus claimed Saturday night that it has Obama’s back, saying it will “vigorously confront Senate Republicans at every turn” if the Republican Senate majority does what everyone knows it will do. Uh-huh.

With Scalia now resting in pieces—ones that the Republicans want to pick up and glue together for a new, right-wing Frankenstein to be presented to the public next year—there’s really only one immediate question left: With the court’s granite-hard Republican gone, how will Clarence Thomas, Scalia’s fellow hard-core right-winger on the court, cope, now that he has to vote and think for himself?


Also on The Root: Supreme Court: Time for a Black Woman?

Todd Steven Burroughs, an independent researcher and writer based in Newark, N.J., is the author of Son-Shine on Cracked Sidewalks, an audiobook on Amiri Baraka and Ras Baraka through the eyes of the 2014 Newark mayoral campaign. He is the co-editor, along with Jared Ball, of A Lie of Reinvention: Correcting Manning Marable’s Malcolm X and the co-author, with Herb Boyd, of Civil Rights: Yesterday & Today.