Backstage with Supreme Court reporter Joan Biskupic
Joan Biskupic, editor-in-charge for legal affairs at Reuters News, spoke at Yale on Feb. 16 as a Poynter Fellow in Journalism. Prior to the event, which was co-sponsored by the Informational Society Project, Biskupric took a few moments to speak with YaleNews about how the death of Justice Antonin Scalia will affect the Supreme Court and about her 25 years covering that institution.
You literally wrote the book on Antonin Scalia (“American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia”). What was the justice’s biggest influence on the court?
Justice Scalia redefined the terms of constitutional debate with his originalist theory. He believed that the Constitution should be interpreted in light of what the framers in the 18th century meant by the words in the document. That wasn’t a new idea with him, but he energized it. He brought it to law school campuses and on the road in many, many speeches. He never won a majority with his colleagues with this approach, but he forced them to think about it. He was also a texturalist. He believed that when you interpret a federal statute you should look at the words of the statute and not the speeches that members of Congress give on the floor of the Senate or the House, or other artifacts of history. And again, he didn’t get a majority for that, but it forced his colleagues to start paying attention to the text as they interpreted statutes.
He was also such a strong conservative voice on social dilemmas: against abortion rights, against affirmative action, for the death penalty, against gay rights, and especially against gay marriage. He was very upset at the end of last term. And even though those ideas were not original to him, he was such a robust voice of dissent in many areas that he came to redefine opposition to the prevailing view.
What happens regarding the cases Scalia heard before his death? Does his opinion still count?
An opinion isn’t ready to be issued until it’s actually issued. So Scalia has voted on all the cases that were heard to date, but the drafting is still underway. When opinions are finished, they come out; the justices don’t hold them. So right now there is still some uncertainty despite the preliminary votes. And when justices write opinions they run the drafts by each other, so I don’t believe that those prior votes and what he said in those preliminary opinions can become the law because it was still in the process of revision.
We’ll know a little bit more next week because we’ll see our first opinion since he died. The justices will be back on Monday; they’ll issue an orders list that will say what new cases are granted or are denied, but they’ll also, probably on Tuesday or Wednesday, issue opinions. I will be very surprised if I see a vote from Scalia or an opinion from Scalia, just because of the nature of the opinion-writing process.
Do you think the Supreme Court today functions the way the founders envisioned, or has it become more political over time?
Well, those are two different questions: one about constitutional interpretation and one about the politics. I’ll address the politics just because of what’s happened recently. Face it, the court was already politically tinged — that’s how its members get appointed: through an elected president, through elected members of the Senate. So it’s going to be a political process no matter what. I do think the court today is more politically polarized than ever. In part it’s probably because of our polarized times, but I think it also has to do with the individual justices.
The Republicans have said they will block the appointment of anyone President Obama nominates — drawing criticism from some who say the move would halt the checks and balances between the three branches of government. Is this true? Will the Supreme Court be “on hold” until a new justice is named?
No. The Supreme Court will go on with eight justices. The risk, of course, is that there will be four-to-four splits, which means that they can’t set any national precedent. But when there is a four-to-four split, the lower court ruling stands. They essentially leave it in place.
That can make a difference in many, many cases — including, for example, the abortion case that’s coming from Texas, where a lower court judge ruled against the challengers to the state’s restrictive abortion law. I don’t necessarily think the court’s going to go that way, but there are times when a deadlock at the Supreme Court could mean a conservative ruling stands below, and there will be some times when it means a liberal ruling stands below.
Who is Obama likely to nominate? Who would a Republican president likely name?
Well, this is a tough one. It’s a tough one for the President because of what the Senate Republicans have already said. There are many lower court judges who could be on deck, especially from the D.C. circuit and the U.S. Court of Appeals for the District of Columbia circuit, which has been a springboard to the United State Supreme Court. In fact, Justice Scalia came from there. Chief Justice John Roberts came from there. And Justices Ginsburg and Thomas came from the D.C. circuit as well. And right now we have Sri Srinivasan, who is a judge who was appointed in 2013. He would be the first Asian American justice if he were to be elevated. There are other members of that court — Merrick Garland, Patricia Millet — who could possibly be in the mix. Also Nina Pillard: She’s a bit of a liberal, so it would be a challenge, but who knows what Obama will do. I actually think he might want to make a statement with someone who frankly would offer more diversity, more racial diversity — for example, an African American. He could be looking at Loretta Lynch, U.S. attorney general. I think whoever he names will be somebody he knows is bullet-proof and probably has gone through the vetting process fairly recently.
If a Republican takes the White House in 2017, I think some leading contenders would be, yet again, another D.C. circuit judge: Brett Cavanaugh, who was appointed by George W. Bush There’s also Paul Clement who was the U.S. solicitor general under George W. Bush. Both were highly regarded conservatives.
In addition to Scalia, you’ve written books on Sonia Sotomayor and Sandra Day O’Connor. Do you plan writing books on other justices?
Well, the first three I did were so interesting that it’s hard to top them, given their life stories, but I do intend to keep writing books on the Supreme Court.
When you began covering the Supreme Court 25 years ago, did you imagine that cases about issues such as abortion and affirmative action would still be on the docket decades later?
That’s a great question. I don’t know if I mused about it, but those are such divisive topics. Still, I think I would have guessed about abortion for sure, because abortion had already been so enduringly controversial since 1973 when Roe v. Wade established a constitutional right for a woman to end a pregnancy. Racial policies … I might not have guessed that, but certainly they’re still here. The death penalty is still here. I wouldn’t be surprised if 25 years now people are still debating these same topics.
What was your most memorable moment, or your biggest scoop, during your years of covering the Supreme Court?
I had a couple that I am really proud of. I knew ahead of others that Justice Byron White was going to step down in 1993; Ruth Bader Ginsburg got that seat. There have been a lot on and off, but the most exciting moments — except for right now — was probably Bush v. Gore. I couldn’t have predicted that outcome, but I have to say that this moment with Justice Scalia’s unexpected death throwing so much into turmoil, affecting so much in the presidential election, just tops it all.