The Death of Antonin Scalia and The Future of the Supreme Court

The passing of an intellectual giant makes way for a giant political fight to replace him

Our nation has suffered a terrible loss.

With the passing of Supreme Court Justice Antonin Scalia last week, the nation has lost an intellectual anchor of the originalist position in the highest court’s conservative wing.

It is virtually undisputed that Scalia was a great legal mind. He served on the court for 29 years and was the most vigorous defender of the original meaning of the Constitution. He strongly opposed the idea of a living Constitution. This means that it was his opinion that the judiciary did not have the power to modify the meaning of provisions of the constitution for changing times. The void left by Scalia is nearly impossible to be filled.

This Supreme Court vacancy is already causing a political fight that will likely become one of the greatest of the new century. While President Obama has announced his plans to nominate a justice to succeed Scalia, Senate Majority leader Mitch McConnell has vowed to block any Supreme Court nominee until the next president takes office.

A successful Obama nominee would be unprecedented. It has been over 80 years since a lame-duck president has nominated a Supreme Court justice.

In contrast, the actions announced by McConnell are not unprecedented. Though Senator Chuck Schumer and other Democrats are calling these plans irresponsible obstructionism, this is clear hypocrisy. In 2007, Schumer said that if a new Supreme Court vacancy were to open up, Democrats should block Bush from filling it “except in extraordinary circumstances.” In addition, as a senator in 2006, Obama filibustered Bush’s nomination of Samuel Alito to the Supreme Court. Not only is it not unprecedented, but blocking Obama’s nominee to the Supreme Court is vital to protecting some of Americans’ most fundamental rights guaranteed to them in the Constitution.

As of now, there are four Democrat-appointed justices on the Supreme Court. All four of them have been very consistent in their use of judicial activism. Some examples of this are the decisions made by the court in cases such as National Federation of Independent Business v. Sebelius, where the court upheld most provisions of Obamacare and Obergefell v. Hodges, where the court forced all 50 states to legalize same-sex marriage. Instead of interpreting the meaning of the original Constitution to decide these decisions, the Supreme Court decided change their interpretation of provisions of the Constitution in order to make and uphold laws that they support.

If a fifth justice is appointed who will engage in left-wing judicial activism, America could be fundamentally transformed. Some of our most vital rights could be lost. For example, a fifth left-wing judge could mean the reversal of the decision written by Scalia in the landmark case District of Columbia v. Heller, in which the court held that the Second Amendment guarantees an individual right to bear arms. A reversal would mean that legislatures could enact blanket gun bans on law-abiding citizens.

“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.” – Justice Scalia

Scalia’s death raises the stakes for this year’s presidential election. Not only will control of the executive branch of the federal government be chosen by the next president, but also the judicial branch. The election of Hillary Clinton or Bernie Sanders would likely mean America will go the direction much of Europe has gone. Fundamental rights like the right to bear arms and right to free speech could be in jeopardy.

The best we can do for Scalia’s legacy is to prevent the court from reversing some of the great decisions he has made. It all comes down to November 8th, 2016.