At its best, the Supreme Court functions precisely as it was intended: as an antidemocratic brake on popular legislative and presidential passions when those passions do violence to the law, the Constitution, and the Bill of Rights. At its worst — and it often has been at its worst of late — it functions like Iran’s Guardian Council, a collection of black-robed faqihs and jurists that sits above and outside the political process, using its position and privilege to impose on the nation a narrow set of social values decocted from the political ether.
With the death of Antonin Scalia and the prospect of replacing him, we are faced once again with the question: Does the law mean what it says, or does it mean whatever people with power want it to mean at any given moment?
Contrary to Josh Barro and others who insist that there is no longer any live issue of principle here, only two competing political factions wishing to use the Court for their own policymaking ends, the question pressed by conservatives is now, as it long has been, what the proper role of the Supreme Court is. Consider the question of abortion. Conservatives have not sought to have the Court act as a super-legislature and enact a federal ban on abortion; rather, conservatives have insisted that the Constitution is silent on the question, that Roe v. Wade is an act of willful judicial imagination, and that the question is properly left to the states and the legislatures.
The habitual labeling of Scalia as a “conservative,” as though he were simply using the Court to do what Jeff Sessions does in the Senate or Ken Buck does in the House, is a libel. As opposed to the outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia often reached decisions that annoyed conservative political activists — because the law demanded it. The Left complains that Scalia was an unthinking “fundamentalist” on the Second Amendment, without taking a moment to consider that he approached the First Amendment in precisely the same way. When conservative legislators wanted to abridge free-speech protections by passing a statute against flag burning, it was Scalia who stood in the way.
Likewise, conservatives who were inclined to ride roughshod over the rights of criminal defendants and Americans deemed “enemy combatants” by the president often ran into the brick wall of Scalia’s jurisprudence. Not because criminals and jihadists had a friend in Scalia, but because they have a friend in the law, to which he was committed. Justice Ruth Bader Ginsburg described Scalia as “one of the most pro–Fourth Amendment judges on the Court.” In fact, he was as a justice “pro” all of the operative amendments. As Lawrence Lessig put it, Scalia wasn’t a judicial conservative but an “originalist who was a conservative.”
The discussion surrounding Scalia and the fight over his replacement treats Scalia’s philosophy — that the law says what it means and means what it says — as though it were exotic, or as if it were a quaint relic of some simpler age.
But what is the alternative?
#share#The alternative is to make the Supreme Court a nine-person mob in a mob-rule society. We already are dangerously close to that point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer will find a way to produce the outcome that the Left desires in any important case. Kagan lied to the Senate about her thinking on the question of gay marriage in order to have the opportunity to enact that thinking from the highest court. Never mind that the Constitution does not actually say what they wish it said about gay marriage, abortion, gun ownership, or the fact that First Amendment protections go well beyond the editorial board of the New York Times: If the Left demands a constitutional right to late-term abortion manufactured out of whole cloth, or that the words “the right of the people” be magically transformed into “the National Guard” in the case of the Second Amendment, these so-called justices will deliver.
The Democrats introduced the contemporary approach to Supreme Court confirmation hearings — as partisan bar brawl — with the nomination of Robert Bork by President Ronald Reagan. In his famous, howlingly dishonest denunciation of the nominee, Senator Ted Kennedy proclaimed:
The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our president. But he should not be able to . . . impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.
#related#That isn’t only the argument for stopping Barack Obama from replacing Scalia with a left-wing activist today. And it isn’t only an argument for voting against, filibustering, and otherwise trying to stop the nomination of left-wing activists to the Supreme Court, and to other federal courts, as a general rule. If indeed Senator Kennedy was correct that the Senate’s duty is to prevent the president from imposing a defective view of the Constitution on future generations of Americans, then the Senate’s duty is to insist on nominees who share Scalia’s view about the fundamental issue: That the law means what it says, and that it is not a writ for seers in black robes to pull out of the penumbras whatever suits them.
By all means, send whatever bum Barack Obama puts forward back to his campus office with a swift kick in the pants. But that is only the beginning. Preventing further damage to the Court — and to the Constitution — in the here and now is necessary. Restoring the integrity of the Supreme Court, and reinvigorating faith in the rule of law for which it purportedly stands, will prove a long and difficult project.