Monday, February 15, 2016

How will the United States Supreme Court change without Justice Scalia?

Sadly, we lost a United States Supreme Court (USSCT) Justice Antonin Scalia on February 13, 2016.  This is the first time that a Justice has died while on the bench in 10 years. However, this is the first Justice to die in session in 70 years.   

Session begins the first Monday in October and runs through the summer.  Arguments are heard then the justices who hear the argument may join in the Opinion or Court ruling.   There are specifically an odd number of justices to avoid ties.  With an even number of justices, ties are more likely and that is  a problem.  Ties mean that the USCCT accomplished nothing, and that it is as if the hearing never took place.   This is concerning because it is very hard to get the USSCT to grant cert (certiorari), or agree to hear an issue.  The Court only chooses the most important issues to hear.   So, for a party to come all the way to the USSCT and have a tie, much has been wasted and the lower court's ruling remains the law.    

The need to replace Justice Scalia is very important.  The President nominates any qualified person (doesn't have to be a judge or even a lawyer).  The Senate Judiciary Committee then interviews the candidate and votes to approve or deny the nomination.  This has become a very political process unfortunately.   

Because justices are on the bench for life, we see decades of trends in the Court Opinions.  While the Republicans control the Senate Judiciary, they want to make sure a "conservative" justice is selected, and the Democrats want more liberal justices.  Right now there is a 4/4 split in the liberal and conservative line.  

But when it comes to USSCT Justices, "liberal" and "conservative" are not the best labels.   While the Court has people who are personally liberal and conservative, Justices are a rare breed.  The oaths of the judiciary prevent them from engaging in partisan politics.  So their conservative or liberal labels don't come from their party affiliation, but rather how they interpret the law.

Back to Scalia:  Scalia was considered the MOST conservative of the justices next to Justice Thomas.   He wrote more options and more dissents than anyone with whom he shared the bench.  And he was an entertaining dissenter.  He wrote scathing criticism of the majority options with which he did not agree, and law students everywhere will thank him in perpetuity.

At the time of his appointment, he was paving the way for diversity, as he was the first Italian-American appointed to the Bench, a devout Catholic (with nine children), and very opposed to abortion and Roe v. Wade.   None of these qualities made him a conservative justice. 

Justice Scalia was a strict constructionist or originalist.  He did not agree that the Law is a living thing.  The Constitution was not alive in Scalia's eyes. Justice Scalia vehemently believed in the Separation of Powers, and that the Judiciary's job was to say what the law is, not what the justices interpreted the law to be or thought the law should be.  (The legislature writes the law, and the executive branch enforces the law). The text of the Constitution, he believed should be translated to the meaning that the Authors would have understood at the time it was written.  So while Scalia was given the conservative rep, he really was just a voice for the liberals of 1787.  

He did not agree with looking at legislative intent.  Scalia believed that the plain reading of any statute should convey intent.  He knew the law, and he made no mystery of where he stood in oral arguments.  He spent oral arguments challenging the attorneys and making his case to his fellow Justices.  

Scalia was criticized for being conservative in a negative way in modern time especially on his position on issues like affirmative action.  But Scalia was a patriot and he believed that we are all one race: American.  

He firmly believed in the democratic process.  For every ideology that he said the Founding Fathers did not write into the Constitution, he encouraged citizens to vote the same into law to show that the People truly wanted that to be the law.  

His strict view of the law was an important element of the Court.  He kept the Court in check in many regards.  With nothing but like-minded people on the Court, America would be in jeopardy.  The balance of ideologies and interpretation is important to the process.  We should encourage our Senate to replace Justice Scalia as soon as possible to ensure that our Court can continue to function as our Founders intended. 

Although Justice Scalia is no longer with us, his legacy on the Court is forever stamped on the history of America as a reminder that no matter where the future takes us,  we never lose sight of the words that our Founders wrote to create this great nation. 

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