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The Real Difficulty with Filling Scalia’s Seat

The opinions expressed by columnists are their own and do not necessarily represent the views of

In 2012, US Supreme Court Justice Antonin Scalia was asked if he would time his retirement so that a conservative president could appoint his replacement. Scalia responded, “I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years.…I shouldn’t have to tell you that. Unless you think I’m a fool.” Well, no one thought Justice Scalia was a fool. Nor, however, did everyone understand exactly what Justice Scalia achieved in his nearly three decades on the Supreme Court. Now that President Obama has nominated a potential successor, it’s critical that the American public understands and appreciates Scalia’s remarkable service.

In my new book, Scalia’s Court: A Legacy of Landmark Opinions and Dissents, I provide an overview of Justice Scalia’s judicial philosophy and then highlight his opinions on topics from abortion to criminal justice to Obamacare in order to show how his views honor the Constitution drafted by our nation’s founders. A proponent of “originalism,” Justice Scalia believed that the US Constitution should be interpreted to mean what it meant to the people who ratified it. He rejected the notion that the Constitution was a “living” document whose meaning could change any time a majority of justices decided to change it.

Some legal experts, for instance, have argued that the Constitution must change with the times to embrace greater individual freedom. Yet, as Justice Scalia pointed out many times, the Supreme Court has too often created new rights out of whole cloth that were not mentioned anywhere in the Constitution and were not rooted in the long-standing traditions of American history. Abortion, including partial-birth abortion, and gay marriage are the two most obvious examples of this type of judge-created rights.

Scalia’s opposition to creating new constitutional rights did not apply solely to the rights sought by political liberals. In a 2000 dissenting opinion, Justice Scalia said he believed that “a right of parents to direct the upbringing of this children” is among the “unalienable Rights” with which the Declaration of Independence proclaims, “all Men…are endowed by their Creator.” He argued, however, that because this right is not mentioned in the Constitution, he did not think he had the authority to strike down a state law even though he believed it interfered with this unenumerated parental right.

While warning against the discovery of newly fabricated rights, Justice Scalia pointed out that some individual rights clearly in the Constitution were in jeopardy of being discarded by the Supreme Court. In his brilliant book, A Matter of Interpretation, Scalia wrote:

The provision prohibiting impairment of the obligation of contracts, for example, has been gutted. I am sure We the People agree with that development; we value property rights less than the Founders did. So also, we value the right to bear arms less than did the Founders (who thought the right of self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment guarantee is held to guarantee nothing more than the state National Guard.

Fortunately, Scalia led a narrow five-justice majority in 2008’s Heller v. DC, which ruled that the Second Amendment protects an individual’s right to keep and bear arms. Scalia’s majority opinion, which examines the text and structure of the Second Amendment as well as its history and interpretation since the Founding Era, is considered by many to be his greatest opinion.

Throughout his career, Justice Scalia tried to get it right—and by right, I mean correct, not conservative. He faithfully applied his judicial philosophy no matter where it led him. He steadfastly defended the constitutional rights of criminal defendants and even voted to protect a flag-burning protestor from prosecution because he thought the First Amendment protected that form of political protest.

Justice Scalia knew that it was not the job of the Supreme Court to fix all of the country’s problems. He admonished his colleagues frequently to respect the Court’s limited role. In one case, clearly exasperated, he wrote, “This Court seems incapable of admitting that some matters—any matters—are none of its business.”

Justice Scalia’s humility, principled approach, and originalist philosophy made him one of the most influential justices in Supreme Court history. His brilliance, wit, and sense of humor helped him write some of the most memorable opinions in American law. As our political leaders and the public consider the future of the Supreme Court, it is important to understand what we lost with Justice Scalia’s passing.

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