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Scalia: The Constitution in Politics

David Cole
In the wake of Justice Antonin Scalia’s sad and untimely death, the stakes for the future of the Constitution could not be higher.
Justice Antonin Scalia testifying before the Senate Judiciary Committee about the role of judges under the Constitution, Washington, D.C., October 5, 2011

Tom Williams/Roll Call/Getty images

Justice Antonin Scalia testifying before the Senate Judiciary Committee about the role of judges under the Constitution, Washington, D.C., October 5, 2011

Justice Antonin Scalia’s sad and untimely death has thrown the future of the current Supreme Court term, the 2016 presidential election, and constitutional law itself into disarray. There is some irony in this. In life, Scalia insisted that the content of constitutional law must be determined by the “original public meaning” of the text adopted by the framers some two hundred and forty years ago, and should be unaffected by contemporary politics; in the wake of his death, the inescapable influence of politics on constitutional interpretation could not be more clear. Scalia’s own replacement on the Court will have the potential to shift the balance of power from the conservative justices, who have been in a majority since the 1970s, to the liberals. And that in turn may shape the direction of constitutional law for decades to come. 

Already, Scalia’s death has changed the likely outcome of several of the most important cases now before the Court. Many commentators had predicted that this term could be one of the most starkly conservative in the Roberts Court’s history. That forecast no longer holds. This is because many of the Court’s hotly contested cases—involving abortion, immigration, religious objections to Obamacare’s coverage of contraception, unions, and voting rights—will now be decided by eight justices, raising the prospect of 4-4 ties. If Justice Anthony Kennedy votes with the three remaining conservatives on these cases, Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito, he will no longer be a “swing” vote if the four more liberal justices are in opposition.

In the short term, this could make the Court’s decisions less politically charged: a tie leaves the lower court decision unchanged, but creates no precedent for future cases. If the lower court result was conservative, as in the decision of the US Court of Appeals for the Fifth Circuit to block President Obama’s plan to defer deportation of certain foreign nationals whose children are US citizens or permanent residents, conservatives will prevail with a tie vote. Where the lower court result was liberal, as in a decision rejecting a constitutional challenge to public sector union dues, a tie will leave the dues in place. In some cases, the Court may simply set the cases for re-argument once a new justice is appointed.

Within hours of the news of Scalia’s death, the political battle lines were drawn over the much more important long-term question of who will replace him. Senate Majority Leader Mitch McConnell, Texas senator and presidential candidate Ted Cruz, and Senate Judiciary Committee chair Charles Grassley all announced that they would not permit President Obama to fill the vacant seat—apparently no matter whom he nominates. President Obama said that he would meet his constitutional responsibility to name a successor swiftly. But any nominee must get the assent of sixty members of the Senate—meaning at least fourteen Republicans—to survive a filibuster, giving the Republicans a strong hand in the process. 

The stakes for the future of the Constitution could not be higher. Many of the Court’s most important cases have been decided by 5-4 votes, and because conservatives have controlled the majority for so long, most of those decisions have leaned right, including on such critical issues as voting rights, equality, campaign finance, reproductive choice, the environment, and holding businesses and government officials accountable for injuries inflicted on citizens. If President Obama (or a future Democratic president) is able to fill Scalia’s seat, the Court will have a liberal majority for the first time in four decades. If, by contrast, the Republicans are able to block or delay confirmation until the next president takes office, and a Republican candidate wins the election, the new president will be able to nominate someone preferred by conservatives and the Court will very likely remain in conservative control. Moreover, given that three members of the Court, Justice Ruth Bader Ginsberg, Justice Kennedy, and Justice Stephen Breyer, are in their late seventies or early eighties, the next president is likely to get the opportunity to fill one or more other vacancies, and thus to put his or her distinctive stamp on the Court for the foreseeable future.

All the political machinations surrounding Scalia’s replacement would have troubled Scalia, who was a firm believer that the Constitution and its interpretation should not be subject to political pressures. He will be most remembered for his stalwart defense of “originalist” interpretation, a school of thought that insists that the only legitimate way to interpret the Constitution is to ascertain what it meant to the generation that adopted it.  In his view, any other approach to constitutional interpretation affords judges too much leeway to impose their own personal preferences. Last term, for example, in the landmark case of Obergefell v. Hodges, he could not comprehend a Constitution that would protect the rights of gay and lesbian couples to marry, for the simple reason that the Constitution when it was written would not have been so understood. Scalia lambasted the majority opinion in that case, which was written by fellow conservative Justice Anthony Kennedy, as “pretentious,” “egotistic,” and filled with “hubris” and the “mystical aphorisms of the fortune cookie.” “Today’s decree,” he warned, “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.”


On today’s Supreme Court, only Justice Thomas adheres to originalism as rigidly as Justice Scalia did. Everyone agrees that original understandings are a starting point in interpreting the Constitution, but the rest of the justices, like the vast majority of those who have served on the Court throughout its history, employ a more pragmatic approach. They recognize that giving the Constitution meaning over centuries requires elaborations far beyond the contemplation of the framers. As Chief Justice John Marshall famously put it for a unanimous Court in the historic decision of McCulloch v. Maryland (1819), which upheld the constitutionality of the national bank, “we must never forget that it is a constitution we are expounding.” It was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” The framers’ use of such terms as “due process,” “cruel and unusual punishment,” “equal protection,” and “reasonable searches” strongly suggests that they contemplated the need for the Constitution to evolve and grow with the nation itself. In other words, most justices have recognized, as Justice Scalia did not, that the framers never intended the Constitution’s interpretation to be rigidly bound by the specific understandings of 1787. 

Scalia’s originalism has surface appeal because it promises a method of constraining judges. But proponents of this approach overstate the constraints their method imposes. History itself is of course subject to widely varying interpretations. Moreover, other forms of constitutional interpretation do not in fact leave the justices free to impose their own political preferences. Constitutional interpretation is constrained by the rules of the discipline. Justices must give carefully argued reasons, follow precedent, and be bound by their rationales in future cases, no matter what theory of constitutional interpretation they apply. Their decisions must attract at least five votes, and are subject to criticism from dissenting justices, the media, and the academy. As a result, even if the Court’s balance of power shifts from conservative to liberal, the changes over time in constitutional law are likely to be at the margins, and will not lead to dramatic departures from precedent. Scalia both exaggerated the constraints of originalism, and underestimated the constraints of alternative approaches.

The framers understood that the power to interpret the Constitution and declare when acts of the political branches are invalid was a grave one. But they maintained that some branch had to have such power if the Constitution was to constrain the government, and that of the three branches, the Court was the least dangerous. They also ensured that the Court itself would be subject to political checks: they made its jurisdiction subject to congressional control, provided for amendment of the Constitution and impeachment of judges by Congress, and, most importantly, directed that the justices would be appointed by the president with the consent of the Senate. In this sense, the Court’s makeup and the Constitution’s meaning have always been informed by politics. Scalia’s vision of a Constitution that was somehow immune from the contending forces that shape—and indeed, constitute—us as an evolving nation was an illusion. And it has never been more dramatically refuted than by the political battles that have already broken out in the days since his death.      

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