By Kevin D. Williamson
Monday, February 15, 2016
At its best, the Supreme Court functions precisely as it
was intended: as an antidemocratic brake on popular legislative and
presidential passions when those passions do violence to the law, the
Constitution, and the Bill of Rights. At its worst — and it often has been at
its worst of late — it functions like Iran’s Guardian Council, a collection of
black-robed faqihs and jurists that sits above and outside the political
process, using its position and privilege to impose on the nation a narrow set
of social values decocted from the political ether.
With the death of Antonin Scalia and the prospect of replacing
him, we are faced once again with the question: Does the law mean what it says,
or does it mean whatever people with power want it to mean at any given moment?
Contrary to Josh Barro and others who insist that there
is no longer any live issue of principle here, only two competing political
factions wishing to use the Court for their own policymaking ends, the question
pressed by conservatives is now, as it long has been, what the proper role of
the Supreme Court is. Consider the question of abortion. Conservatives have not
sought to have the Court act as a super-legislature and enact a federal ban on
abortion; rather, conservatives have insisted that the Constitution is silent
on the question, that Roe v. Wade is
an act of willful judicial imagination, and that the question is properly left
to the states and the legislatures.
The habitual labeling of Scalia as a “conservative,” as
though he were simply using the Court to do what Jeff Sessions does in the
Senate or Ken Buck does in the House, is a libel. As opposed to the
outcome-oriented, decision-first/reasoning-afterward approach of the Court’s Alice in Wonderland progressives, Scalia
often reached decisions that annoyed conservative political activists — because
the law demanded it. The Left complains that Scalia was an unthinking
“fundamentalist” on the Second Amendment, without taking a moment to consider
that he approached the First Amendment in precisely the same way. When
conservative legislators wanted to abridge free-speech protections by passing a
statute against flag burning, it was Scalia who stood in the way.
Likewise, conservatives who were inclined to ride
roughshod over the rights of criminal defendants and Americans deemed “enemy
combatants” by the president often ran into the brick wall of Scalia’s
jurisprudence. Not because criminals and jihadists had a friend in Scalia, but
because they have a friend in the law, to which he was committed. Justice Ruth
Bader Ginsburg described Scalia as “one of the most pro–Fourth Amendment judges
on the Court.” In fact, he was as a justice “pro” all of the operative amendments.
As Lawrence Lessig put it, Scalia wasn’t a judicial conservative but an
“originalist who was a conservative.”
The discussion surrounding Scalia and the fight over his
replacement treats Scalia’s philosophy — that the law says what it means and
means what it says — as though it were exotic, or as if it were a quaint relic
of some simpler age.
But what is the alternative?
The alternative is to make the Supreme Court a
nine-person mob in a mob-rule society. We already are dangerously close to that
point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer
will find a way to produce the outcome that the Left desires in any important
case. Kagan lied to the Senate about her thinking on the question of gay
marriage in order to have the opportunity to enact that thinking from the
highest court. Never mind that the Constitution does not actually say what they
wish it said about gay marriage, abortion, gun ownership, or the fact that
First Amendment protections go well beyond the editorial board of the New York Times: If the Left demands a
constitutional right to late-term abortion manufactured out of whole cloth, or
that the words “the right of the people” be magically transformed into “the
National Guard” in the case of the Second Amendment, these so-called justices
will deliver.
The Democrats introduced the contemporary approach to
Supreme Court confirmation hearings — as partisan bar brawl — with the
nomination of Robert Bork by President Ronald Reagan. In his famous, howlingly
dishonest denunciation of the nominee, Senator Ted Kennedy proclaimed:
The damage that President Reagan
will do through this nomination, if it is not rejected by the Senate, could
live on far beyond the end of his presidential term. President Reagan is still
our president. But he should not be able to . . . impose his reactionary vision
of the Constitution on the Supreme Court and on the next generation of
Americans. No justice would be better than this injustice.
That isn’t only the argument for stopping Barack Obama
from replacing Scalia with a left-wing activist today. And it isn’t only an
argument for voting against, filibustering, and otherwise trying to stop the
nomination of left-wing activists to the Supreme Court, and to other federal
courts, as a general rule. If indeed Senator Kennedy was correct that the
Senate’s duty is to prevent the president from imposing a defective view of the
Constitution on future generations of Americans, then the Senate’s duty is to
insist on nominees who share Scalia’s view about the fundamental issue: That
the law means what it says, and that it is not a writ for seers in black robes
to pull out of the penumbras whatever suits them.
By all means, send whatever bum Barack Obama puts forward
back to his campus office with a swift kick in the pants. But that is only the
beginning. Preventing further damage to the Court — and to the Constitution —
in the here and now is necessary. Restoring the integrity of the Supreme Court,
and reinvigorating faith in the rule of law for which it purportedly stands,
will prove a long and difficult project.
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