The sudden and untimely death of Justice Antonin Scalia on February 13 is a reminder of two things — first, how much he himself meant to the rule of law and the integrity of our Constitution; and second, how very much is at stake in this year’s presidential election. Justice Scalia was a champion of textualism and originalism in the reading of both statutes and the Constitution, and he was the reliable anchor of the Supreme Court’s originalist wing in an era of deep division and conflict with the “living Constitution” approach to jurisprudence that holds down the other wing of the Court. His passing leaves the contending sides slightly less evenly matched, if anything maximizing the influence of Justice Anthony Kennedy, the notorious swing vote who alternates between constitutional constraint and progressive abandon.
Scalia was already an important figure in conservative legal circles when he was appointed by President Reagan in 1986 — present at the creation of the Federalist Society as a professor at the University of Chicago, and for four years an accomplished judge of the D.C. Circuit Court of Appeals. His nomination to the Supreme Court was confirmed 98–0, an outcome that would have been unlikely if he had not been succeeding William Rehnquist (elevated to chief justice at the time), with Republicans in control of the Senate. (Witness the furor a year later when Reagan nominated Robert Bork to succeed the swing-vote Lewis Powell, with Democrats in the majority.)
With his brilliance, his tenacity, and his devastating wit, Justice Scalia transformed the terms of debate in American constitutional law. Under his commanding intellectual influence, constitutional discourse both on and off the Court took an originalist turn. By far the most eloquent and effective writer of judicial opinions in the past 60 years of Supreme Court history, Scalia was equally ready to advance his views in books, articles, and public appearances — and to spar cheerfully with those who disagreed with him.
And it is precisely because of Justice Scalia’s three-decade effort to rein in a runaway Supreme Court that we urge Senator Mitch McConnell and his fellow Republicans to stand fast in their resolve to deny President Obama the capture of Scalia’s seat on the Court. For one thing, there is no urgency about filling the vacancy. The Court will conclude oral arguments in the current term by the end of April; no justice arriving after that could participate in a single one of this year’s cases, and confirmation in time to consider even a handful of them would entail an unseemly rush. And the justices can begin the October 2016 term shorthanded without any difficulty, setting the calendar to wait until early 2017 before taking up the most critical cases.More important, with the Court so evenly divided, with President Obama such a proven devotee of a living Constitution that simultaneously upends settled legal understandings and liberates executive power, and with an election less than nine months away, this is no time for feckless accommodation over the future of the Supreme Court. Judicial imperialism is a cancer in the body politic. It would only metastasize with another Obama appointment. This election season, the Republican candidates for president — especially the eventual nominee — must place the politics of the judiciary squarely before the people, showing them that the only way toward a less political Supreme Court is through a more openly political debate about its future.
If this happens, Antonin Scalia will have done, in death, one last great service for his country, rescuing American voters from a binge of silliness and sobering them up about their great responsibility as a self-governing people in a constitutional republic. Whatever happens next, Justice Scalia has our abiding respect and gratitude. R.I.P.