Aziz Huq Models How a New Justice Can Reshape the Law
Biden Should Nominate the Scalia of the Left
Conventional wisdom holds that the next Supreme Court justice will barely move the needle. There is an ideologically solid, six-vote conservative majority on the court that would not be altered by whomever President Joe Biden nominates to replace Justice Stephen Breyer.
At the very most, with this view, a new justice might follow Justice Elena Kagan’s path of building “consensus through persuasion” behind the scenes, as the New York Times described it. Beyond personal charm and malleability, the story goes, a new justice would have pitifully few tools for shaping the law.
This is a mistake. Justices don’t just exercise influence by wheeling and dealing behind the scenes. Even a jurist without the votes to win can make a mark and move the nation. The proof of this — and a model for a powerful Biden pick — is that least liberal of judicial icons, Antonin Scalia.
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