Antonin Scalia was a Justice of the Supreme Court of the United States. In the excerpts from The Bob Zadek Show, he appears chiefly as a reference point in discussions of judicial appointments, the structure of government, and constitutional litigation, rather than as the subject of a dedicated episode.
The vacancy and the 2016 election
Gail Heriot and Bob Zadek discussed the legal and political implications of Scalia’s death, analyzing pending cases including Friedrichs v. California Teachers Association and Fisher v. University of Texas, the constitutional duties of the President and Senate regarding appointments, and potential structural reforms to the Supreme Court intended to reduce the concentration of power Gail Heriot on the Significance of Justice Scalia’s Passing (2016). The episode’s topics also included originalism, textualism, judicial deference, court packing and term limits.
The vacancy Scalia’s death created became, in the account given a year later, a pivotal point in the 2016 election. Bob Zadek discussed the significance of Neil Gorsuch’s nomination to the Supreme Court with guest Ilya Shapiro, exploring the court’s growing influence on major political issues and how the vacancy left by Scalia became a pivotal point in that election Judge Gorsuch on the Hot Seat (2017).
Scalia on the structure of liberty
Glenn Roper, a constitutional litigator, described Scalia as one of his heroes and recalled his account of the foundation of American freedom. Roper said Scalia used to say that the foundation of our freedom is not based in the Bill of Rights, and that he was emphatic about this. Roper reported Scalia’s colorful phrase that every tin-pot dictator has a Bill of Rights, illustrating the point with the observation that one can go to North Korea and find in their constitution a Bill of Rights protecting freedom of speech and freedom of the press, when those kinds of rights are not really available to the average citizen The Mini-Administrative State (2020).
On Roper’s account, Scalia held that what ensures our freedom is the structure of government — the Constitution’s setup apart from the Bill of Rights and the other amendments, the checks and balances between the different branches that hold each branch accountable. Roper described the legislative branch with Congress, the executive branch headed by the President, and the judicial branch, with push and pull and boundaries between them, and said that this push and pull and check and balance protects freedom and liberty much more than any of the rights listed in the Bill of Rights. Bob Zadek extended the point to the pandemic, arguing that when the separation of powers disappears and power ends up collected in the executive alone, bad decisions are made because the checks and balances are lost.
The Antonin Scalia School of Law
Scalia’s name also appears in the excerpts as the name of a law school. Introducing Todd Zywicki, Bob Zadek described him as teaching law at George Mason University’s School of Law, the Antonin Scalia School of Law Vaccine Mandates, George Mason, and the Bill of Rights (2021). Zywicki was the plaintiff in a successful legal challenge against George Mason University’s COVID-19 vaccine mandate, brought with attorney Jenin Younes of the New Civil Liberties Alliance; the university conceded the point rather than allow the case to establish a precedent.
Zywicki described the Antonin Scalia Law School as a unique place and said he had received nothing but favorable feedback from his colleagues, whom he characterized as clear-thinking people who understand the science and the Constitution. He said students had been even more enthusiastic, and called it wicked and vicious to require students who had recovered from COVID to be vaccinated, describing the practice as a moral abomination.
Clerkship and judicial selection
Scalia appears once more in a biographical aside. Introducing Judge Jeffrey S. Sutton, Chief Judge of the United States Court of Appeals for the Sixth Circuit, Bob Zadek noted that Sutton had clerked for Supreme Court Justice Lewis Powell and for Supreme Court Justice Antonin Scalia Who Decides? (2022). Sutton was nominated by George W. Bush and confirmed by the Senate in April of 2003. The episode concerned Sutton’s books 51 Imperfect Solutions, subtitled States and the Making of American Constitutional Law, and Who Decides?, subtitled States as Laboratories of Constitutional Experimentation, and explored the role of state constitutions and federalism, why the identity of the decision-maker often matters more than the outcome of a case, and how states serve as laboratories for constitutional rights.
Across episodes
Four episodes touch on Scalia: the 2016 discussion with Gail Heriot of his death and its consequences; the 2017 discussion with Ilya Shapiro of the Gorsuch nomination and the vacancy’s role in the 2016 election; the 2020 discussion with Glenn Roper, in which Scalia’s structural theory of the Constitution is recounted; and the 2021 and 2022 episodes, where his name attaches to a law school and to a clerkship. The excerpts show no development in the treatment of Scalia himself — he is invoked, not examined — and the later episodes do not revisit the questions raised in the 2016 episode about the vacancy, court packing or term limits.
What the sources do not cover
The excerpts contain no discussion of Scalia’s judicial opinions, his originalist method as he himself practiced it, his confirmation, or his tenure on the Court. No excerpt states which cases he decided, how he voted, or when he was appointed. The pending cases named in the 2016 episode — Friedrichs and Fisher — are identified only as pending, with no holding or disposition given. The excerpts also do not state the outcome of the appointment dispute that followed his death beyond its role in the 2016 election.