Supreme Court Justice Antonin Scalia was found dead on Saturday morning. Scalia is one of the minority of judges on the nation’s highest court who is pro-life and supports overturning Roe v. Wade, the Supreme Court decision that allowed virtually unlimited abortions.
“I am saddened to report that our colleague Justice Antonin Scalia has passed away,” Chief Justice John Roberts said in a statement Saturday afternoon. “He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served.”
Scalia, 79, was a guest at the resort in West Texas, the Cibolo Creek Ranch, reportedly as part of a private group of about 40 people. When he didn’t appear for breakfast Saturday, someone went to his room to check on him and found a body.
Texas Gov. Greg Abbott issued a statement extending condolences to Scalia’s family. He called the justice “the solid rock who turned away so many attempts to depart from and distort the Constitution.”
Texas Sen. Ted Cruz, a 2016 Republican presidential hopeful and himself a former clerk on the Supreme Court, posted a statement on Facebook mourning the death of “one of the greatest Justices in history.” Cruz said, “A champion of our liberties and a stalwart defender of the Constitution, he will go down as one of the few Justices who single-handedly changed the course of legal history.”
“My reaction is it’s very unfortunate,” Biery told the newspaper. “It’s unfortunate with any death, and politically in the presidential cycle we’re in, my educated guess is nothing will happen until the next president is elected.”
President Obama could nominate a candidate to fill the vacancy, but winning confirmation by the Republican-controlled Senate in an election year would be difficult. The opening undoubtedly will fuel at debate in the presidential campaign about the importance of choosing his successor on a closely divided court.
The communications director for Sen. Mike Lee of Utah, a member of the Judiciary Committee, posted a tweet that said the chances of the Senate approving Obama’s appointment was “less than zero.”
Scalia frequently talked about his views on abortion and the high court case that allowed for unlimited abortions throughout pregnancy for any reason.
“You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it,” he said in an interview previously with California Lawyer.
For those wanting to make abortion legal, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Scalia often reiterated his position that the Constitution’s 14th Amendment doesn’t guarantee equal protection for women in a way that could be construed as allowing abortion on demand.
Scalia told the California Lawyer publication that, while the amendment doesn’t offer equal protection for women, state legislatures are free to legislate such protections. He said the amendment, when it was adopted, was not intended to offer legal protection for women. Abortion advocates have used it to constitutionally justify legal abortions.
“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia said. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
“If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society,” he said. “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”
Scalia was considered to be one of the four justices most likely to support overturning Roe if a case reached the high court. Justice Clarence Thomas has also publicly expressed his desire to overturn the 1973 decision.
Chief Justice John Roberts and Justice Samuel Alito have already issued one abortion opinion overturning a previous Supreme Court decision allowing partial-birth abortions and overturning a partial-birth abortion ban claiming it required a health exception. Their decision to reverse and affirm Congress’ findings that abortion is never necessary to protect women’s health is seen as an indication they may be willing to overturn Roe as well.
Together, the four comprise a minority of four justices compared with the pro-abortion majority for Roe, which includes Justice Anthony Kennedy, who has gone along with limits on abortion but has not shown any indication he would side with those favoring overturning Roe.