Legal loggerheads: Professor fears Supreme Court battle may cause unintended consequences

By Linda Laderman

Legal News

“As someone who watches the Supreme Court, this is an exciting time,” said Detroit Mercy Law Professor J. Richard Broughton. “We haven’t seen anything like this in recent times, this is extraordinary.”
Broughton’s work focuses on American politics and institutions, and the intersection of politics, constitutionalism, and criminal justice.  His writing has been cited in opinions from the U.S. Supreme Court.

The last example of a president late in his term filling a Supreme Court vacancy was when Ronald Reagan nominated Justice Anthony Kennedy. 

“Remember, Kennedy was Reagan’s third choice, after Robert Bork and Douglas H. Ginsburg,” Broughton said.

What might Scalia have thought about a situation like the one his death created?

Given that Scalia contended that the Constitution should be applied based on the original meaning of its words, Broughton said he thinks Scalia “would say that even if the Congress plans to stand in the president’s way on nominations, the president should still make the nomination and let the process play out.”

“Of course,” Broughton said, “he would also say that the Constitution gives the Congress the authority to reject the nomination.”

“Scalia was a pretty ardent defender of executive power, and robustly supported the separation of powers,” Broughton said. “Any effort by Congress to interfere at all with the president’s exclusive authority to carry out his constitutional functions would violate the separation of powers.”  

The challenges President Barack Obama faces, if he decides to put forward a nominee, are significant, Broughton said. 

“There will be a huge fight, and it is unlikely anyone will be confirmed,” he said. “The Senate’s only obligation is to give advice and consent. It doesn’t work for the president.”
According to Broughton, a refusal to consider the president’s nominee might lead to scenarios that bring unintended consequences for those who block a nomination.

“The real danger in saying no confirmation is you might have senators in purple states who are running for re-election who will have to explain why they
wouldn’t even consider someone. 

“It will be a tough sell,” Broughton said.

There is another situation that holds an undesirable result for Republicans, Broughton said.

“What about the possibility that Hillary Clinton wins the presidency and the Republicans lose control of the Senate in 2017,” Broughton asked. “It’s the worst case scenario for Republicans and not out of the realm of possibility. They need to be aware of that.”

While some argue that Scalia’s death alters the balance of the Supreme Court, Broughton said that the court was never a 4-4 split. 

“I viewed it more as a 4-3-1 split,” he said. “Kennedy is not a reliable conservative like Roberts, Alito and Thomas.”

The high court “is a very different kind of institution than the executive and legislative branches,” Broughton said.

“It is wrong to assume the court is just another political institution,” he said. “In discussing the court, we are talking about a constitutional framework that makes the court independent of raw politics.”

“We can’t entirely separate the court from politics but I would urge us to remember what we’re protecting is the Constitution and the rule of law,” Broughton said.

Joining the number of Supreme Court scholars who are discussing Scalia’s legacy, Broughton said: “The court has lost a leading opponent of the ‘living’ Constitution.”

“But the court has also lost one of its great writers — Scalia’s opinions were important not just for his views on the law but for the quality of his writing,” Brouhton said “And his most interesting writings, and
those that tended to have the greatest impact upon the reader, tended to be his separate opinions, notably his dissents.”

Broughton attributes the scale of Scalia’s dissents to his adherence to a structured set of principles. 

“Scalia did not always get four other votes for his views. In fact, he often did not, which is why he spoke in separate opinions so regularly,” Broughton said. “But Scalia was not willing to let political trends, or the popular sentiment of the moment, supersede his view of the law and of the proper role of the court. Even when he knew that his view was an unpopular or minority view, he stuck to a principled view of the law and of the court’s role.”

“I think he got people thinking about the text in ways we hadn’t seen before,” Broughton said. “We are thinking about originalism and textualism whether we agree with it or not.”

Calling Scalia “a deeply influential person,” Broughton said, “Scalia influenced an entire generation of lawyers, particularly on the right. He was very influential on young lawyers who were interested in
constitutional law.”

He said Scalia “could be a tough guy on the court, but in his personal life people adored him.”

“And unlike some justices who mellow with time, we didn’t see any softening in Scalia’s opinions,” Broughton said “Often, as justices grow older, they become more liberal, but not in Scalia’s case.”

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