Justice Antonin Scalia’s greatest legacy was his tireless championing of originalism. The method of interpretation he advocated—following the Constitution’s text and history where they lead—offers clear lessons for the current political struggle over the vacancy created by his death, especially now that President Barack Obama has fulfilled his constitutional duty by nominating D.C. Circuit Chief Judge Merrick Garland to the Supreme Court.
You are here
Articles & Commentary
Nowhere in the text or history of our Constitution is the Senate permitted to drop an iron curtain across Pennsylvania Avenue and refuse even to evaluate a president's nominee. President Obama has done his job, it's time for Senators to do theirs.
More than 20 years ago, in Planned Parenthood v. Casey, the joint opinion, signed by Justices Kennedy, David Souter, and Sandra Day O’Connor, reaffirmed constitutional protection for the right to choose abortion and crafted the undue burden standard to give “real substance” to women’s liberty, equality, and dignity. Casey explained that “unnecessary health regulations” that substantially burden a woman’s fundamental right are unconstitutional. If Justice Kennedy follows what he’s written, he should vote to put an end to laws, like those enacted by Texas, designed to make an end-run around the Constitution.
Whether the American people trust in our justice system depends, in significant part, on whether they can trust the judges who make up that justice system to be impartial.
It's always difficult to predict what the Supreme Court will do based on oral argument, but it's clear what the justices should do: They should recognize that Chief Justice Castille's participation in Williams' case was a clear violation of the Constitution.
Last year, defenders of discriminatory marriage laws urged the Supreme Court to defer to the judgment of state legislatures that had denied marriage equality to same-sex couples. This year, defenders of restrictive anti-abortion laws designed to shutter abortion clinics are making the same argument, insisting that courts have no warrant to decide whether a state’s abortion law actually serves health-related purposes. This argument works no better a second time around. When the Supreme Court hands down its ruling in this Term’s blockbuster abortion case, the Justices should make clear that courts should not rubberstamp laws that deny women liberty, equality, and dignity.
Roberts has repeatedly decried perceptions that polarization in the political branches will “spill over” and undermine the court’s stature. As recently as February 4, he has insisted, “We don’t work as Republicans or Democrats,” and that “people don’t have a really good understanding of what the Court does.” But now Republicans have drawn his Court into the middle of the biggest political fight of the decade.
Imagine the Supreme Court deciding more than 100 cases without its full complement of nine Justices. Imagine this closely divided Court splitting 4-4 in many of those cases, meaning that it cannot issue a decision that provides binding law for the whole country. And imagine that, as a result, different people in different parts of the country are subjected to different laws. This is exactly the harmful and chaotic scenario some Republican leaders are advocating in the wake of Justice Scalia’s death. They should not be allowed to make that happen.
If the Senate were to refuse to even hold a hearing to consider a Supreme Court nominee, especially in an election year? That’s a whole new ballgame. The vacancy, and the court's 4-4 ideological split, would likely persist across two Supreme Court terms, months into 2017. Such an extended vacancy would be unprecedented. And the fact that some senators are resolved to maintaining this situation is irresponsible.
Senate Majority Leader Mitch McConnell's (R-Ky.) immediate reaction on Saturday to the news of the death of Supreme Court Justice Antonin Scalia was a knee jerk, hyper-partisan announcement, an obstructionist claim that the Senate should not act on any nominee submitted by President Obama but instead should leave the Court short-handed for at least a year. According to McConnell, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President."
Now that the Supreme Court has decided to hear the case, it should reaffirm its recognition of the broad discretion enjoyed by the executive branch when it comes to enforcing the nation’s immigration laws and permit the executive branch to exercise that discretion here. If it does, many people will have cause to celebrate when the Court announces its ruling – proponents of the rule of law and a well-functioning government, supporters of the president’s executive action, and, most important, the millions of children and their parents who may benefit from the president’s action.