The Future Path of the Supreme Court

Source: Conservative Review | February 16, 2016 | Hans von Spakovsky

The sudden, unexpected death of Justice Antonin Gregory Scalia is a tragedy not just for his extensive family and many friends, but for the Supreme Court, the nation, and all those who believe in the rule of law and the supremacy of the Constitution. This was his 13th year on the Court, and in those thirty years, he helped change the course of the law with his profound legal analysis and his single-minded determination to bring the Court back to applying the Constitution as it was written and understood by the men who wrote it.

Scalia had a visceral contempt for activist judges who legislate from the bench, rewriting statutes and the Constitution to mean whatever they want them to mean to match their personal opinions and beliefs on controversial social issues and government policies. Liberal critics, as is their wont, often misinterpreted Scalia’s opinions to criticize him for supposedly holding political views that they disagreed with, showing how fundamental their misunderstanding is of the proper role of a judge and how they had no real comprehension of how Justice Scalia approached his job as a justice.

The Supreme Court’s gay marriage decision in Obergefell v. Hodges in 2015 is a prime example. In the hours after his death, liberals took to social media in a totally contemptible, disgusting manner to celebrate Scalia’s death and mock his career, with critical comments on his supposed views on race and homosexuality, including some by editors at Cosmopolitan and Buzz Feed. But as Scalia made plain in Obergefell, whether our society recognized gay marriage or not was not the issue — what was important was who made the decision, the American public or unelected judges:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangement it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance…

It is of overwhelming importance, however, who it is that rules me. Today’s decree 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. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Scalia believed passionately in our Republic and the rights, liberty, and freedom protected by the Constitution and the Bill of Rights. He rejected the too-often successful attempts by judges who believe in a “Living Constitution” to rewrite it and put issues like gay marriage, “off-limits to the democratic process” as he said in his 2012 book, on the proper interpretation of the law.


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