Scalia: What next for the Supreme Court?

“The word ‘brilliant’ is overused,”
said Mona Charen in National
Review. But in the case of Justice
Antonin Scalia, who died a
fortnight ago, “it may be too
weak”. In his 29 years on the US
Supreme Court, Scalia used his
caustic wit and intelligence to
bring new vigour to what had
previously been the dullest of
America’s three branches of
government. His arguments didn’t
always carry the day; indeed, he
wrote more of his famously
blistering dissents than he did
of majority opinions. But by
championing the conservative
legal philosophy known as
“originalism” – which holds that
courts should be guided by the meaning of the Constitution as it
was originally written – he was hugely influential. Scalia, said
Stephen Calabresi in USA Today, was quite simply “the most
important justice in American history”.
“Good riddance,” said Paul Rosenberg on Salon.com. For all
Scalia’s charm and vaunted devotion to the “rule of law”, his
opinions were appallingly reactionary. In the infamous Citizens
United decision of 2010, he decided that when the Founders
said “free speech”, they meant money – a ruling that struck
down campaign funding limits and accelerated the corruption of
US politics. And who can forget his nakedly partisan, circular
logic in concurring with the Bush v. Gore ruling that handed
the 2000 presidential election to the Republicans? If Florida
were allowed to recount the votes of its citizens, Scalia
reasoned, it might reveal that Al Gore had won the election,
thus “casting a cloud” over the legitimacy of the rightful
president, George W. Bush.
In 2012, said Charles Krauthammer in The Washington Post,
Scalia remarked that he wouldn’t retire until a Republican was
back in the White House. “I would not like to be replaced,” he
explained, “by someone who
immediately sets about undoing
everything that I’ve tried to do
for 25 years”. But that is now
a real danger. If President Obama
replaces Scalia with a left-wing
justice, the closely balanced
Supreme Court will be split 5-4
in favour of liberals, potentially
ushering in a new era of
left-wing judicial activism.
That’s why the Republicans are
quite rightly insisting that they
will block any new appointment
until after the presidential
election in November.
Get ready for what could be “the
meanest nomination battle in
modern American history”, said Jonah Goldberg in the Los
Angeles Times. It’s going to “get very ugly”. Democrats have
accused the GOP of violating a “sacred norm” by vowing to
block Obama’s Supreme Court appointee, yet they’ve done the
same in the past. But the Republicans are taking a gamble, said
Mark Joseph on Slate.com. If they win the White House, they’ll
get to choose Scalia’s successor. But what if a Democrat wins?
They could appoint a very liberal nominee, and then “no
conservative precedent would be safe”. Not the right to bear
arms enshrined in District of Colombia v. Heller, not Citizens
United, not the death penalty. Why don’t Republicans at least
consider a “compromise candidate”?
The row over Scalia’s replacement promises to add “an extra
layer of insanity” to a presidential campaign “already defined
by radicals and demagogues”, said Ross Douthat in The New
York Times. The irony is that this clash between law and
politics is exactly the kind of thing Scalia’s legal philosophy
tried to keep in check, by “promoting a more limited vision
of the Supreme Court’s role” in America. “But for his
influence, in this effort he clearly failed – and what’s about
to come will prove it.”


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