This past weekend Associate Justice of the Supreme Court of the United States (SCOTUS) Antonin Scalia died. It sent shockwaves throughout the conservative community. We were not only saddened that a good man had died but that we lost our conservative voice on SCOTUS. Though they are are a lot of questions surrounding death, I am not going to play conspiracy hunter. This is about what will happen now that Scalia is gone.
- We will no longer have a conservative voice on the Court. Unless Thomas picks up the mantle, it is unlikely we will have a say in what goes on in SCOTUS. However, Thomas usually just concurred with Scalia, he very rarely wrote any opinions of his own. I don’t see him doing so now. So unless Thomas decides to pick up the torch due to his friend’s Scalia’s death and carry on where he left off, we are in real trouble.
- If another liberal justice gets appointed to SCOTUS they win have a permanent 5-4 win. Excluding Scalia the only other conservative judges were Alito, Roberts (who is iffy), and Thomas. With Scalia there were four of them and occassionally they could get another yes vote but without him, if another liberal got appointed then it would be 6-3. So getting five would be a cakewalk and conservatives would essentially be left out of the discussions and/or decisions.
- There would be no strict constitutionalist left on SCOTUS. Scalia didn’t believe the Constitution was a “living document.” If you want to change the Constitution, you pass an amendment. You don’t like a law, you do it from the Legislature. Not from the Executive nor the Judicial. Scalia understood that. Roberts, no so much, he showed his willingness to bend the Constitution when he voted that Obamacare was a “tax” and not a fine. Thomas is probably a strict adherent since he agreed with everything Scalia said. Sadly, I don’t know that much about Samuel Alito and so I won’t make any predictions one way or another. Regardless, who emerges in his place Scalia was the best and strong strict constituionalist we had.
- While Scalia couldn’t stop the legislating from the bench he at least called it out when it happened. “I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. [Emaphasis mine] Today’s opinions in support of reversal do not bother to distinguish—-or indeed, even bother to mention the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey.” Scalia’s dissent in Lawrence v. Texas. Scalia was virtually saying that the Court was being manipulative in how it chose to view and use precedent to decide a case. Which has been the case for a long time. Without him, legislating from the bench will be much easier.
These are the things that will definitely change without Scalia. America didn’t lose a Supreme Court judge on Friday, we lost our best defense at remaning America.