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The Future Path of the Supreme Court

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This column by ACRU Policy Board member Hans von Spakovsky was published February 16, 2016 by Conservative Review.

The sudden, unexpected death of Justice Antonin Gregory Scalia is a tragedy not just for his extensive family and many friends, but for the Supreme Court, the nation, and all those who believe in the rule of law and the supremacy of the Constitution. This was his 30th year on the Court, and in those thirty years, he helped change the course of the law with his profound legal analysis and his single-minded determination to bring the Court back to applying the Constitution as it was written and understood by the men who wrote it.

Scalia had a visceral contempt for activist judges who legislate from the bench, rewriting statutes and the Constitution to mean whatever they want them to mean to match their personal opinions and beliefs on controversial social issues and government policies. Liberal critics, as is their wont, often misinterpreted Scalia’s opinions to criticize him for supposedly holding political views that they disagreed with, showing how fundamental their misunderstanding is of the proper role of a judge and how they had no real comprehension of how Justice Scalia approached his job as a justice.

The Supreme Court’s gay marriage decision in Obergefell v. Hodges in 2015 is a prime example. In the hours after his death, liberals took to social media in a totally contemptible, disgusting manner to celebrate Scalia’s death and mock his career, with critical comments on his supposed views on race and homosexuality, including some by editors at Cosmopolitan and Buzz Feed. But as Scalia made plain in Obergefell, whether our society recognized gay marriage or not was not the issue —- what was important was who made the decision, the American public or unelected judges:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangement it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance…

It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine —- of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Scalia believed passionately in our Republic and the rights, liberty, and freedom protected by the Constitution and the Bill of Rights. He rejected the too-often successful attempts by judges who believe in a “Living Constitution” to rewrite it and put issues like gay marriage, “off-limits to the democratic process” as he said in his 2012 book, on the proper interpretation of the law.

Many of his critics are simply incapable of understanding a justice whose concern wasn’t that of a legislator deciding whether a law was good policy, but whether a law was within the power of the legislative branch under the Constitution. His view was illustrated in a 1987 case, CTS Corp. v. Dynamics Corp. Of America, when he said that “a law can be both economic folly and constitutional.”

Scalia also had a wonderful, often sarcastic sense of humor that shines through his opinions, particularly his dissents, and that was ever present in the courtroom, where the public, the advocates, and the other justices would regularly erupt in laughter at one of his verbal sallies. Although he was good personal friends with all of the justices on the Court, including the liberals, he never hesitated to point out their mistakes. His dissent in King v. Burwell, the 2015 decision that upheld subsidies for federal healthcare exchanges in the Patient Protection and Affordable Care Act (Obamacare), was full of such pointed comments.

These ranged from discussing the majority opinion’s “next bit of interpretive jiggery-pokery” to their “next defense of the indefensible.” Scalia derisively but accurately said that “we should start calling this law SCOTUScare.” He was direct, pithy, and unrelenting in calling things the way he saw them, concluding that the Court’s holding in Burwell was “quite absurd, and the Court’s 21 pages of explanation make it not less so.”

Perhaps one of his funniest footnotes —- that makes an important point at the same time about judges changing the law to fit their beliefs —- was in the Obergefell decision. In footnote 22, Scalia said:

If, even as the price to be paid for a fifth vote, I ever joined an opinion from the Court that began: ‘The Constitution promises liberty to all within it reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Since the terrible news out of Texas on Saturday, two important questions have been circulating in Washington and legal circles, where we are not even given time to mourn his passing. What happens to the current cases before the Supreme Court, and will an Obama nominee be confirmed to the Court?

On the current cases before the Court, we are on somewhat uncharted ground. The procedure at the Court is that after oral argument in a case, the justices have a meeting in which they tell everyone how they intend to vote —- whether to uphold or reverse the lower court decision —- and the chief justice assigns who will write the majority opinion. That vote can be changed by a justice before the decision is publicly released.

However, I spoke with several former Supreme Court clerks who told me there was no reason why Chief Justice Roberts could not include Justice Scalia’s vote on those cases. Some believe it would be inappropriate for Chief Justice Roberts to discard and discount the votes of Justice Scalia on all of the cases that have already been argued, even if those opinions have not yet been written, when Justice Scalia informed him and the other justices what his vote was on the case. Those votes should be given effect.

There are a number of important cases before the Court to which this applies. These include the teachers’ union case out of California, Friederichs v. California Teachers Association (argued Jan. 11); the redistricting case over noncitizens from Texas, Evenwel v. Abbott and the redistricting case from Arizona, Harris v. Arizona independent Redistricting Commission (both argued Dec. 8); and the college admissions case, Fisher v. UT-Austin (agued Dec. 9). Justice Kagan was actually recused from Fisher because of her work on the case as Obama’s solicitor general, so without Scalia’s vote this will be a seven-justice case. Hopefully, the Court will finally do the right thing and outlaw racial preferences in college admissions.

Unfortunately, there are cases that have not yet had oral arguments. Those include The Little Sisters of the Poor v. Burwell, a dispute over the “SCOTUScare” contraceptive mandate (scheduled for March 23); U.S. v. Texas, the immigration case filed by 26 states to stop Obama’s immigration amnesty plan (no argument yet scheduled); and Whole Woman’s Health v. Hellerstedt, the Texas abortion case (argument scheduled for March 2). If the justices have a 4-to-4 tie vote in those matters, the lower court decision stands until the issue is again before the Court in a future case.

The president can nominate but the Senate has no constitutional obligation to confirm —- and they shouldn’t.

In some cases, that is a good outcome —- the Obama administration would lose the immigration case since the Fifth Circuit Court of Appeals upheld the injunction issued against his amnesty plan. There would be a bad outcome in the Little Sisters of the Poor case, since the Tenth Circuit refused to vindicate the First Amendment right of the Little Sisters not to pay for abortion services to which they objected as a matter of conscience. In the Texas abortion case, the state’s new requirements would go into effect. But if the chief justice does not decide to use Justice Scalia’s votes on cases already heard, there will be some bad results. That includes the California union case and the Texas redistricting case in which the plaintiffs’ vote were devalued because the state included noneligible, noncitizens in the populations used to draw district lines.

On the issue of a replacement for Justice Scalia —- and it is hard to imagine finding anyone who can fill his shoes both Mitch McConnell (R-KY) and Chuck Grassley (R-Iowa), the majority leader of the Senate and the chairman of the Judiciary Committee, respectively, have said they will not consider any nominee sent to the Senate by President Obama. As Grassley pointed out in a statement, “it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”

Democrats are trying to point to the confirmation of Anthony Kennedy in 1988. But that Supreme Court vacancy didn’t occur in 1988; Kennedy was the third nominee for that slot. The long delay was due to the unfair, vicious attack the Democrats launched in 1987 on Robert Bork, one of the foremost legal scholars in the country. While Sen. Chuck Schumer is today saying that Republicans have no right to stop Obama’s nominee, that is not what he said in 2007 in a speech to the American Constitution Society. In fact, he said there would be no more confirmations of Bush Supreme Court nominees except under “extraordinary circumstances.”

The American people should weigh in on who will fill this seat when they decide who will be the next president of the United States.

The Senate should not confirm the nominee of a president in the waning days of his administration who will then sit in a lifetime appointment. Or as Sen. Grassley put it, given that this president “has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Right now, the Court is balanced between the conservative and liberal wings of a great debate —- whether we should interpret the Constitution as written or whether we should have a “Living Constitution” that changes with the prevailing social winds. Confirming the type of liberal judge that President Obama has been nominating in droves to the lower federal courts throughout his entire term will tip that balance. It will swing the court to a majority who want to expand the power of the courts and the federal government at the expense of the American people and their freedom to make their own decisions, through the political process, on life, liberty and the pursuit of happiness.

The president can nominate but the Senate has no constitutional obligation to confirm —- and they shouldn’t. The American people should weigh in on who will fill this seat when they decide who will be the next president of the United States.