By JOE RONCA
Staff Writer
A short time ago, America lost an icon who will never be replaced. I am not referring to author Harper Lee, whose “To Kill a Mockingbird” redefined how we think about race in the United States. No, I am referring to Justice Antonin Scalia, an Associate Justice of the Supreme Court who had served for nearly 30 years, longer than any other justice currently on the bench.
By the time this article is printed it will have been almost a week and a half since Scalia passed away in his sleep at a remote hunting ranch in West Texas, but the shock waves from his death are still being felt. Scalia’s influence on the Supreme Court and jurisprudence simply cannot be overstated. Scalia, who was 79 at the time of his passing, was appointed to the nation’s highest court by President Ronald Reagan in 1986.
Scalia was often considered to be the most conservative member of the Court, and held the judicial philosophy of originalism. Originalism is the principle, held mostly by conservatives and libertarians, that the Constitution should be interpreted based solely on the original meaning of the document.
Originalists stand opposed to those who view the Constitution as a “living” document that can be updated by activist judges as they see fit. Scalia was the first Justice to openly call himself an originalist, and he influenced Clarence Thomas, John Roberts, and Samuel Alito, all of whom would later serve alongside Scalia on the Court.
Scalia was essentially the intellectual godfather of the Court’s conservative wing, and was largely responsible for the growth of originalism as an accepted philosophy of jurisprudence. For this, Scalia was an incredibly polarizing figure who was admired by conservatives and detested by liberals. This trait resulted in Scalia being the Justice who was most widely featured in law review articles.
Scalia was also known as an incredible intellectual who possessed a legal mind rivaled by few in its acumen. He filed a tremendous volume of opinions, both dissenting and in the majority, during his tenure on the Court. His opinions were notable for their usage of scathing language and harsh criticisms of his fellow Justices. His dissenting opinion in Obergefell v. Hodges (2015), the decision last year that legalized same-sex marriage nationwide, attacked the majority opinion for “lacking even a thin veneer of law,” and that deciding in such a manner was signaling that the Court was “descending from the disciplined legal reasoning of John Marshall and Joseph Story to the mythical aphorisms of the fortune cookie.” That is some pretty harsh, but hilarious, criticism right there.
Scalia was a man who was admired, by many, myself included. His originalism won me over and greatly shaped my views on the meaning of the United States Constitution. Scalia understood, as I like to think that I do, that even though the results may go against your own personal beliefs, the Constitution is the supreme law of the land and it has to be treated with an almost religious level of respect. Therefore, we must rely on the original meaning of the text itself in order to determine what is and is not constitutional.
If an activity is not specifically protected in the text of the Constitution, then it is not unconstitutional for state or federal authorities to prohibit it. That is the sole reason why I think that the Supreme Court got the aforementioned Obergefell decision wrong. I do believe as a libertarian that someone should be able to marry anyone they please, but the Constitution does not explicitly grant homosexuals the right to marry. Thus, bans on gay marriage are not unconstitutional.
The 10th Amendment, the most overlooked, but most vital, amendment to the Constitution, states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, states can legalize or prohibit gay marriage on an individual basis, but the practice cannot be legalized or prohibited at the federal level.
Is it just for the state of Alabama to ban gay marriage? No, but it is completely within their constitutional power to do so. If we as citizens do not like that gay marriage is not legal nationwide, then we need to convince our elected representatives to draft, pass and ratify an amendment to the Constitution explicitly protecting the right of homosexuals to marry their partners. This is how we did things in the past before activist judges tore apart the Constitution.
No landmark Supreme Court case abolished slavery or granted women the right to vote; instead, our leaders drafted, passed, and ratified the 13th and 19th Amendments, which did away with such barbaric practices. For helping to formulate, defend, and apply this line of thinking about the Constitution, I will forever admire Scalia.
Now, we must briefly discuss the political ramifications of Scalia’s death. Scalia’s passing means that the Court consists of the conservatives John Roberts, Clarence Thomas, and Samuel Alito, the liberals Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer, and the moderate Anthony Kennedy, who is typically the Court’s swing vote.
Whoever President Obama nominates to fill Scalia’s place will most likely be extremely liberal. This threatens to destabilize the balance of power on the Court that thus far has ensured that conservatives and liberals achieve relatively equal numbers of legal victories.
If Obama’s nominee is confirmed, the Court will have a solid liberal majority for the first time since the 1970s, which gave us the rulings that brought legalized abortion and the disastrous policy of forcibly busing students in order to desegregate schools.
Conservatives obviously want to block Obama from securing this liberal majority, and many have proposed that Obama delay nominating anyone and allow his successor to do so. Obama and the Democrats have argued that Obama has the constitutional duty to put forward a nominee in a timely manner.
As much as it pains me to say it, Obama is right on this one. The president and the president alone has the duty to nominate a Supreme Court Justice in the case of a vacancy. There is a silver lining here for Republicans, though. They control the Senate, and thus can block the confirmation of Obama’s nominee.
This could force Obama either to pick a recess appointment who would serve only until after the election, or to nominate a moderate who is palatable to both Republicans and Democrats. While this hypothetical moderate nominee would join Justice Kennedy as a swing vote, which would definitely result in conservatives losing more than they would win, it would also prevent the emergence of a liberal supermajority. It is not great, but it is better than the alternative.
Also, Obama could fail to get a nominee confirmed, a Republican could win the race for the White House, and we’d get a conservative replacement for Scalia. So it’s not all bad news.
Justice Antonin Scalia was a brilliant legal scholar who had a tremendous impact on American jurisprudence. The fact that originalism has gained traction since the 1980s is due largely in part to his efforts. He was also well-liked by nearly all of his colleagues, especially the ultra-liberal Ruth Bader Ginsburg. Scalia’s legacy will live on forever in American life, but the man himself will be sorely missed.
