Interview: Kenji Yoshino on Scalia’s Legacy, State of SCOTUS

Professor Kenji Yoshino | Credit: NYU School of Law

Written by Sarah Higgins, Staff Writer, and Naeem Crawford-Muhammad, Editor-in-Chief

The sudden death of Associate Justice of the Supreme Court Antonin Scalia has sent shockwaves throughout the legal and political landscapes of the United States. While only time will tell how history will remember Justice Scalia, Sarah Higgins and Naeem Crawford-Muhammad of The Commentator sat down with Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, to get his perspective on the life and legacy of Justice Scalia, and the current state of the Supreme Court.

Sarah Higgins (SH): Have you ever personally interacted with Justice Scalia, and if so, in what capacity?

Kenji Yoshino (KY): I was fortunate enough to be on a panel with Justice Scalia for PBS NewsHour about what it means to be an American. The panel had three left-leaning people, including myself, and three conservatives, including Justice Scalia.

The idea of the panel was to figure out where could we find common ground, and one of the pieces of common ground was the degree of gratitude we all felt in being Americans. But the real pleasure of the event was dinner afterwards. I had heard rumors about Justice Scalia’s charm, his ebullience, and his outgoing nature, and those were all on full display.

SH: Can you describe in more detail how Justice Scalia interacted with you personally?

KY: He was very engaged. It was funny because he said to me, “I heard about you and I expected you to be a lot more liberal/crazy, and you seem perfectly reasonable.” And I said, “well I am a liberal but I was raised by conservative parents. I think the difference between a good conservative and a good liberal is just how broadly you draw your circumference of concern. My parents were immigrants and drew their circumference of concern around the family and would have done anything for the family. Whereas the luxury of the education and the opportunities they gave me allowed me to care more about people to whom I am not related.”

He reacted very positively to that and said, “I knew you had conservative parents because that’s why you turned out so well.” And I said, “well hold on there because you are suggesting that if I have kids that they won’t turn out that well.” He laughed and thought that was very funny.

He is also a great lover of literature, so we talked about a Charles Dickens character, Mrs. Jellyby [from the novel Bleak House], who keeps writing checks to missionaries in different parts of the world, while her own children were being neglected. We agreed that whether you are a conservative or a liberal, caring more for humanity in general than the human beings around you can’t be the right model. Overall, it was a very wonderful, lively dinner.

SH: Now, we are going to shift to talk about the Supreme Court itself. Do you know if the Court is scheduled to issue any more rulings for this current term?

KY: Well, we presume that they will. They have recently heard arguments today [March 1, 2016] on the abortion case [Whole Woman’s Health v. Hellerstedt] that will revisit what the undue burden standard means. This, in my view, is the most important reproductive rights case that we have had since 1992 [Planned Parenthood of Southeastern Pennsylvania v. Casey].

The Court has dodged the question of what is an undue burden is [in terms of abortions] until this current case. I assume that if they felt that they couldn’t function as an eight-member Court, they would have set the case for re-argument. So, the fact that they are hearing it suggests to me that they are quite willing to go it as an eight-member Court for as long as they need to.

The Court could have DIGed [dismissed as improvidently granted] some of these cases, meaning they decided that they shouldn’t have granted certiorari and will dissolve the grant of cert. If you DIG a case, it is as if the Court never granted cert in the first place. This can happen at any time, so we could imagine that in the upcoming affirmative action case [Fisher v. University of Texas], the Court could say that they don’t want to create such a monumental precedent without a full nine-member Court.

SH: What would the Court do in an instance where there was an even 4-4 split amongst the justices?

KY: It is well-settled practice that a 4-4 split is called, “affirmance by an equally divided Court.” Any time there is a tie, the Court generates no precedent, and whatever the Circuit below decided remains the law, but only for that Circuit. In the abortion case, [Hellerstedt], the Fifth Circuit upheld the restrictions on a woman’s right to abortion, so if the Court splits 4-4 in this case, then the Fifth Circuit decision will hold and be binding law, but only in the Fifth Circuit, and won’t create national precedent.

SH: How do you think Justice Scalia’s death has shifted the political and legal landscape of the country?

KY: I think it has been a seismic shift. I was reading an article….that said that Senators are refusing to meet with President Obama with regard to appointing a Justice. This notion that the American people should be allowed to decide who their next Justice is going to be seems to me to be very wrongheaded, given that the American people decided to give President Obama that power when they elected him.

The idea that a president’s power to nominate a candidate would expire simply because it’s his last year in office would make no sense if we applied it to any of the other powers that the executive has. For example, is the president no longer permitted to act as Commander in Chief just because it’s his last year of office?

In fairness to the Senate, what they are saying is that this isn’t a unilateral decision, and that they have the power to give their advice and consent with regard to the nominee, and ultimately they have to confirm. Over the course of our nation’s history there have been twenty-four times in which a president has nominated and the Senate has confirmed a Supreme Court Justice in the last year of the president’s term. So, the current Senate really can’t cite to past practice.

What must be going on here is that the Senate, for completely political reasons, which I resist as a constitutionalist, is saying this would so dramatically alter the balance of the Court that they want to hold out hope that a Republican president will be elected, so they are going to prevent President Obama from creating a fifth liberal vote on the Court.

Naeem Crawford-Muhammad (NCM): Earlier this week [Associate] Justice Clarence Thomas spoke in oral arguments for Voisine v. United States, which was the first time he has spoken in over a decade. What do you think this signals for his role in the Court?

KY: I want to put an asterisk on this. He did break his silence once in 2012, but only to take a dig at [Justice Thomas’ and my] alma mater, Yale Law School, to say that a degree from Yale isn’t worth the paper that it’s printed on. But you are quite right that this is the first time in a decade that he asked substantive questions.

Justice Thomas has been elliptical as to why he remains silent on the Court. On his early days on the Court, he has said it was because he was self-conscious of his Gullah dialect. His later reasoning has been that oral arguments are for the litigants and that his colleagues interrupted them too much, and he was there to listen to them talk.

I am speculating, but I think that one of the reasons that he may becoming more vocal now, based on the timing of Justice Scalia’s death and his questioning in oral arguments, is that maybe he feels that he needs to be the torchbearer now for the Originalist, conservative voice that Justice Scalia was. Without being overly sentimental about it, there is sense in which he is carrying on his fellow traveler’s and friend’s legacy now that Justice Scalia is unable to speak.

NCM:  [Is there] anyone affiliated with NYU Law that you think could be a possible nominee by President Obama?

KY: Raymond Lohier, an NYU Alum who sits on the Second Circuit, has been discussed by SCOTUS Blog, which I think is one of the most reliable places to look. I think that he would be a possible choice.

Editor’s note: The Commentator also reached out to Professors Rachel Barkow and Scott Hemphill, who clerked for Justice Scalia, but they were unavailable for comment.