Joan Biskupic

"When in the fall of 2004 Chief Justice William Rehnquist fell ill with thyroid cancer, his condition set off months of conjecture over his potential replacement. Antonin Scalia's name was at the center of the speculation. On the Supreme Court for almost eighteen years, Scalia had become the intellectual leader of legal conservatives. Law students and professors- the like-minded but even many who disagreed with him- devoured his legal opinions. Of the nine sitting justices, he was most often the subject of academic law review articles. He had a celebrity quality that drew standing-room-only crowds to his appearances on college campuses. And he was held up as a model justice by President George W. Bush, who would be the one deciding on a new chief justice if Rehnquist retired. Yet Scalia was also the Court's contrarian. The speculation on Rehnquist's replacement turned on the question: Could a justice whose views of the Constitution harked back two centuries, and who routinely lost the votes of his colleagues become chief justice of the United States? Within the decorous chambers, Scalia was notorious for pushing away other justices at critical points in the decision-making process. In a close case, when he was barely holding on to a majority, he could not resist brash comments that might alienate a key vote. When he was in dissent, he did not go quietly. On critical points of law he declared that his colleagues' opinions "cannot be taken seriously"; were "beyond the absurd"; and should be considered "nothing short of preposterous." In June 2004, a few months before Rehnquist revealed the cancer, the Court ruled that the execution of mentally retarded convicts violated the Eighth Amendment prohibition on cruel and unusual punishment. Scalia, in dissent, blasted the majority: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.""

"Around this time, Justice Ruth Bader Ginsburg said of Scalia, "I love him. But sometimes I'd like to strangle him." Justice John Paul Stevens, the eldest member of the bench, added separately, "I think everybody respects Nino's wonderful writing ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and position." Stevens, who expressed fondness for Scalia even when Scalia was his most rhetorically overdramatic, later elaborated, "If he thinks a position is totally indefensible, he'll say so. And sometimes I think his rhetoric is stronger than what is justified or what is actually persuasive. He's got to have the last word. But is it really worth it?""

"The Supreme Court is likely never to go as far as Scalia wants on racial policies. And in an equally explosive area of the law, he will likely never see the overturning of Roe v. Wade- Kennedy would block that. Scalia is also likely to continue on the losing side of gay rights, courtesy of Kennedy. Yet, in upcoming years, Scalia could help bring about more mingling of church and state and less government regulation of campaign financing- again, because of votes by Kennedy and fellow conservatives. Scalia will also certainly continue to nourish his originalist constitutional theory and bring it to wider audiences."

"Win or lose, Scalia remains energized. Justice Breyer has often referred to the "physical energy" and "intellectual rigor" Scalia brings to the task. And Thomas observes, "He puts on his music and gets his computer ready. It's like he's conducting a symphony... with majority opinions, and dissents, too." Scalia might be at the apex of his influence. With conservatives holding the balance of power, and still being among the younger members of the nine, these final years of the first decade of the twenty-first century might offer Scalia his best ever opportunity to prevail. This could be his best shot."

"Supreme Court eras are often identified with their chief justices, as is true of the current period that began with Roberts nearly two decades ago. But the Court can be measured also by presidential influence. Certain presidents, such as Franklin D. Roosevelt, who appointed eight justices in his twelve years in office, had a disproportionate effect on the Court. Ronald Reagan and Richard Nixon also stood out for their imprint. The Trump effect, especially in terms of the individuals chosen and the resulting shift in the balance of power, has been incomparable. He is gone from office and they are here for life."

"Joan Biskupic has covered the Supreme Court since 1989. Previously the Supreme Court reporter for The Washington Post, she is the legal affairs correspondent for USA Today, a frequent panelist on PBS's Washington Week, and the author of Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice. She lives in Washington, D.C., with her husband and daughter."