Scalia, the Court, and the Country

With the recent passing of Justice Antonin Scalia, the Supreme Court not only lost one of its greatest jurists but, in many ways, it lost its conscience. Originalism, the jurisprudential doctrine championed by Scalia, served not to restrain the executive and legislative branches, but the judiciary. For a judge to base his or her opinions on the original meaning of a given law or statute serves to restrain the scope of a ruling because it is based on the intent of those who were actually granted the authority to make laws. Scalia’s most memorable dissents came not when he strongly disagreed with the outcome of the case, but when the majority assumed power and authority beyond what it was granted. He understood the intent of the founders in designing the judiciary to be the weakest of the three branches of government. As the Court began to drift away from simply deciding a case on the merits and instead began to also implement its own desired policy, Scalia was always the anchor, the voice of reason urging the Court not to stray from its constitutionally granted authority. He knew the danger posed to the Republic when five unelected judges impose their will on a people by subverting the democratic process through judicial fiat disguised as interpretation.

The Supreme Court has become increasingly partisan, as many opinions seem keenly aware of the political consequences of a particular holding. From Chief Justice John Roberts declaring the Obamacare mandate a tax (despite government lawyers explicitly arguing it was not) in order to avoid striking it down to Justice Anthony Kennedy discovering “new dimensions of freedom” in the 14th Amendment in order to force states to recognize same-sex marriage, Justice Scalia warned that the Court is moving that much closer to being “reminded of our impotence.” The Federalist No. 78 notes that courts have neither force nor will but only judgment, yet modern courts act as arbiters, not of what is legal, but rather of what is fair or preferable. This plays out in the nominating process as President Obama declared that his primary qualification for a Supreme Court Justice is “empathy for the poor.” Many legal experts agree with President Obama that a judge should do more than merely decipher the legality of an action or statute, which is why Scalia and his voice for originalism was so vital to the integrity of the judicial process.

Likewise, the country is worse off without Scalia on the Court. The Founders designed a system of checks and balances to prevent any one branch of government from gaining too much power. With the slow erosion of federalism and states’ rights and the refusal of Congress to take any significant action to restrain the Executive, the Supreme Court became the primary check on runaway executive power. Scalia embodied this crucial Constitutional role being served by the Court and his absence opens the door that much more for increased executive authority and a minimization of the Court’s place as a check on the president.

The trajectory of governance in America is veering from a government “by the people” toward authoritarianism with tremendous power in the hands of the executive with minimal checks from the other branches. Even in areas where Congress has explicit checks on the president (e.g., the purse-strings), it has shown extraordinary reluctance use this power, thus relying on the judiciary as the final impediment in the way of unrestrained executive authority. Justice Scalia was conscience of the Court in the fulfillment of its designed Constitutional role, serving as a check on the other two branches while showing restraint with regard to its own power. One of the many reasons America has drifted so far from the course intended by the Founders is that governmental branches have far exceeded the authority expressly granted them by the Constitution. Justice Scalia constantly reminded them of this, urging them to get back to their ordered path and return power where it rightfully belongs, to the people and to the states. His passing is a huge loss for the Court and for jurisprudence, but most of all, for the people and the future of the Republic.


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