Episode Overview

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Episode: Amicus Extra: Antonin Scalia's Death
Air Date: February 15, 2016
Hosts/Guests:

• David Plotz (A)
• Dahlia Lithwick (B), Slate's Chief Legal Correspondent, Host of Amicus
• Emily Bazelon (C), New York Times Magazine and Political Gabfest

Theme:
A special discussion following the death of Justice Antonin Scalia, examining his legacy, memorable moments in his Supreme Court tenure, the immediate and long-term political and judicial consequences, and the uncertainty surrounding his replacement.

Key Discussion Points & Insights

1. Remembering Justice Scalia: Personality and Style

• Scalia in Court

  • Dahlia Lithwick describes Scalia as "larger than life, colorful, kind of giggling at his own humor," noting that he stood out among his colleagues for his bombastic presence (01:04).
  • Quote, Dahlia:

    "He was just a character on a court where... they all looked the same, they all talked the same. And then there was just this big bombastic guy in the middle." (01:32)

• Vivid Scalia Moments

  • Both panelists highlight his tendency to use sharp, sometimes inflammatory language, referencing his controversial comments during the Fisher (affirmative action) case, perceived as racially insensitive (01:50).
  • Quote, Dahlia:

    "He chose to say it in a way where he almost knew there would be blowback." (02:39)

• His Evolution

  • Emily Bazelon notes an increase in caustic, "dyspeptic" rhetoric in his later years, especially regarding gay marriage and voting rights (02:55).
  • Dahlia concurs, describing Scalia’s progression to "fully cross[ing] the line into Fox News pundit" in both bench demeanor and media appearances (03:16).

2. Scalia’s Influence on Legal Thought

• Originalism

  • Emily: Scalia was the “public face” of originalism—interpreting the Constitution by the original intent of its framers, although he admitted himself as a "faint hearted originalist" due to inconsistencies in application (04:20).
  • Quote, Emily:

    "That contribution to legal thinking and the degree to which he has pulled conservatives on the court in that direction... those were really important contributions." (05:31)

• Limits of Influence

  • Dahlia questions the long-term adoption of originalism on the Court itself, asserting that "it may just be like... here’s a little nod to originalism, you know, go, Nino," but doubts current Justices beyond Thomas fully embrace the doctrine (06:20).
  • Emily: Scalia’s outspoken style sometimes made him his "own worst enemy," potentially costing him majorities due to alienating peers (07:27).

3. Scalia’s Relationships and Court Culture

• The Ginsburg Friendship
  • The group reflects on the famous Scalia-Ginsburg friendship as an example of cross-ideological rapport, yet questions its broader relevance (08:40).
  • Dahlia:

    "This is just a strange little bubble of a world where if you only get to be friends with eight other people and their spouses, I guess you have to learn to get along." (09:19)

  • Emily suggests Scalia and Ginsburg made a show of the friendship, but its substantive effect on jurisprudence is questionable (10:09).
  • Dahlia reads from Ginsburg’s statement, highlighting her ability to take Scalia’s criticism in stride—perhaps a lesson in resilience for others (11:06).
    • Quote, Dahlia (from Ginsburg):

      "I loved applesauce. I loved when he called me argle-bargle." (11:06)

4. The Impact of Scalia’s Death on the Supreme Court

• An Eight-Member Court
  • Emily explains that with eight Justices, a 4-4 tie upholds the lower (appellate) court decision but carries no national precedent, leading to potential legal "checkerboards" across circuits (12:22).
  • Dahlia notes this setup could make for significant regional inconsistencies—particularly on issues like abortion (13:32).
    • Quote, Dahlia:

      "...it’s entirely possible that after June, abortion restrictions that are permissible in the Fifth Circuit will not be permissible in other courts. And that’s exactly the kind of weird checkerboard that you don’t want to have in the country." (14:02)

5. The Nomination Battle Ahead

• Senate Stalemate

  • It’s anticipated that Senate Republicans will resist any Obama nominee, potentially delaying appointment for over a year (16:11).
  • Emily:

    "So this is both totally dysfunctional and completely understandable, politically speaking." (17:19)

• Political Strategies

  • There’s discussion about Obama potentially nominating a centrist or previously Senate-approved appeals judge to expose the obstructionism (17:44).
  • Dahlia: Suggests the process privileges insular Supreme Court “insiders”—limiting the pool to those less likely to be vilified (19:54).

• Alternatives and Political Consequences

  • Emily and Dahlia discuss whether this obstruction could energize the political left, which historically has attached less urgency to the Court than the right (22:29).
  • Dahlia:

    "If Hillary and Bernie want to seize it, if Obama really wants to do the thing he has not done with his prerogatives in power... and fight for them, you know, he can choose to do that." (23:50)

6. Electoral Stakes and Final Thoughts

• Supreme Court as an Election Issue
  • The hosts agree this vacancy could mobilize both parties, but especially the right, for whom the Supreme Court is a galvanizing issue (23:18).
  • Emily advocates for nominating a moderate left judge and for Obama to highlight the unprecedented nature of obstructing a nominee for such a lengthy period (24:58).

Notable Quotes & Memorable Moments

• "He was exactly the way we all imagine him, larger than life, colorful, kind of giggling at his own humor..."
  — Dahlia Lithwick (01:04)

• "He chose to say it in a way where he almost knew there would be blowback."
  — Dahlia Lithwick, describing Scalia’s remarks in Fisher (02:39)

• "In the last couple of years that was happening more and more in his writing and his public appearances... it got so caustic and dyspeptic, don’t you think?"
  — Emily Bazelon (02:55)

• "That contribution to legal thinking and the degree to which he has pulled conservatives on the court in that direction... those were really important contributions."
  — Emily Bazelon on the legacy of originalism (05:31)

• "It’s entirely possible that after June, abortion restrictions that are permissible in the Fifth Circuit will not be permissible in other courts."
  — Dahlia Lithwick on the risk of a split court (14:02)

• "This is both totally dysfunctional and completely understandable, politically speaking."
  — Emily Bazelon on Senate obstruction (17:19)

• "If Hillary and Bernie want to seize it, if Obama really wants to do the thing he has not done... and fight for them... he can choose to do that."
  — Dahlia Lithwick (23:50)

Timestamps for Key Segments

• Scalia’s Personality & Courtroom Presence: 01:04 – 02:39
• Memorable Scalia Moments & Rhetoric: 01:46 – 03:54
• Influence of Originalism: 04:20 – 06:03
• Friendship with Ginsburg: 07:54 – 11:06
• Functioning of the Eight-Member Court: 12:15 – 14:19
• Supreme Court Vacancy Politics: 15:14 – 19:54
• Nominee Strategies & Progressive Response: 21:33 – 23:18
• Supreme Court & 2016 Election Stakes: 23:18 – 25:45

Tone and Dynamics

The conversation is lively, incisive, and sometimes wryly humorous. The hosts alternate between reverent, critical, and playful, reflecting Scalia’s own complex legacy—charismatic, divisive, and highly influential in American legal culture.

Conclusion

This special episode provides a thorough, nuanced look at Antonin Scalia’s outsized legacy, the cultural and legal shifts he inspired, the immediate turmoil caused by his unexpected vacancy, and the high political stakes for the Supreme Court—and the nation—in a pivotal election year.