Without Antonin Scalia, What Now for the Constitution?

Associate Justice Antonin Scalia, the longest serving member of the U.S. Supreme Court, has died of “natural causes” at the age of 79. The 1986 Reagan appointee once made it clear why his sudden departure is a matter of great concern.

“I am always governed by the text,” he wrote, “and I give the text that meaning the people had when they ratified the Constitution.” Scalia was perhaps the greatest opponent of “the Living Constitution.”

This doctrine views the Constitution as “a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” And who determines when change is needed and what the change will be? The people? No. “[I]t is the judges,” Scalia said, “who determine the need and ‘find’ that changing law” under the Living Constitution.

Scalia opposed this doctrine on “originalist” grounds that the Constitution is intentionally difficult to amend in order to protect fundamental liberties and the balance of power between the states and the nation. He did not oppose change in an orderly, constitutional manner and did not fear change. His real fear was not that the Living Constitution crowd would facilitate social change, but that they would seek to prevent it.

“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly,” Scalia wrote in 1996 when dissenting from a case wherein the Court essentially forbade government-sponsored, single-gender educational institutions. “That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”

Scalia called it like he saw it and did not pull punches. In King v. Burwell (2015), when the Court held that the words “Exchange established by the State” found in the Obamacare statute really meant “Exchange established by the State or the Federal Government.” This saved the creation of tax credits for federal exchanges and Obamacare itself.

Scalia also took the majority to task for rewriting a federal statute. “Much less is it our place to make everything come out right when Congress does not do its job properly,” he wrote. “It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.”

With eight justices on the High Court 4-4 splits are likely. When this happens, the decision of the lower court will stand. Pending cases include unions’ ability to collect fees from non-members for collective bargaining, accommodation for religious organizations under the Affordable Care Act’s contraceptive mandate, affirmative action, the Second Amendment, and executive orders dealing with immigration matters.

Antonin Scalia will be remembered for his fidelity to the Constitution and his preference that public policy be made in legislative chambers rather than courtrooms. There will never be another quite like him, fond of phrases such as “pure applesauce” and “interpretive jiggery-pokery.” On the other hand, Scalia was not the only one “governed by the text” of the Constitution, and that could be part of his legacy.

With a seat vacant, President Obama could have an opportunity to mold the Court into a solidly “liberal” institution for years to come. But a hearing on a nominee before the presidential election will almost certainly not happen with the Republicans in control of the Senate. A Republican victory in November would make matters even more interesting.