Nominating a Scalia of the Left is Biden's Best Chance to Influence the Courts
Conventional wisdom holds that the next Supreme Court justice will barely move the needle. There is an ideologically solid, six-vote conservative majority on the court that would not be altered by whomever President Joe Biden nominates to replace Justice Stephen Breyer.
At the very most, with this view, a new justice might follow Justice Elena Kagan’s path of building “consensus through persuasion” behind the scenes, as the New York Times described it. Beyond personal charm and malleability, the story goes, a new justice would have pitifully few tools for shaping the law.
This is a mistake. Justices don’t just exercise influence by wheeling and dealing behind the scenes. Even a jurist without the votes to win can make a mark and move the nation. The proof of this — and a model for a powerful Biden pick — is that least liberal of judicial icons, Antonin Scalia.
Over a career that lasted more than three decades, the Reagan appointee demonstrated that a jurist does not need to command a majority of the court to exercise a wide and deep influence on American law. What’s needed is a refusal to compromise or hide one’s principles — a crucial lesson for Biden and progressives if they hope to change the direction of the court over the long term.
A first way in which Scalia achieved this remarkable feat was through the sheer force of his language. Summing up Scalia’s influence in 2003, NPR’s Nina Totenberg accurately explained that he had “failed” to secure a majority in many high-profile cases but nevertheless had “changed the terms of the debate.”
Scalia did this with different tools. For example, he excoriated his colleagues’ habit of using committee reports and floor statements from Congress as a guide for interpreting federal statutes. In the early 1980s, scholars could speak of the “almost absolute acceptance” of such evidence. But in a series of brutal concurring and dissenting opinions — eight in his first three years — Scalia heaped scorn on these documents as “frail” and constitutionally deficient. His campaign was so prominent, and so relentless, that he succeeded in embarrassing his colleagues out of using legislative history. Indeed, this was the beginning of a larger tectonic shift in how federal courts read statutes — ignoring contextual evidence of what Congress intended — that continues to be felt in major cases, from rulings on Biden’s vaccine mandate to the reach of employment discrimination law.