Scalia’s Passing: A Reminder of the Stakes

 

The death of Antonin Scalia ought to be a wake-up call. Mitch McConnell, to his credit, has made it clear that Barack Obama will not be allowed to replace Justice Scalia. That means that the question whether we will retain even a hint of constitutional government lies in the hands of the next President.

Think about it. Do you want Hillary Clinton, Bernie Sanders, or Donald Trump to name Scalia’s replacement? Think about it, and think about it again and again. Given the ages of the sitting Justices of the Supreme Court, it has been obvious for a long time that the next President will be in a position to reshape the court. This sad event is a salutary reminder of the stakes.

I am not of the opinion that Scalia was without fault. He was, in fact, an old-fashioned New Deal Justice. He accepted what FDR did to the Constitution when he threw ought the limits on federal power implicit in the commerce clause. The only one to challenge the New Deal consensus in this or any regard was Clarence Thomas, who really is our most distinguished Justice; and I regret to have to say that Scalia rarely followed his lead.

But Scalia knew arrant nonsense when he saw it, and he was prepared to call a spade a spade. His opinions — especially, his dissents — are in consequence a joy to read. The man could write; and, my oh my, could he think.

I met the Justice once. I was in DC. I had arranged to have dinner with an old friend, who is a distinguished journalist. He was invited to the Christmas Party put on every year by Dick Cheney, and he suggested that I tag along. At the party, which was a large affair, Scalia happened along and greeted my friend, who introduced the two of us. It says much about Scalia that he spent the next half hour chatting with a total stranger of no importance. He was a gent, and he was good company. It does not surprise me that the man I met should have written with such verve and force. There was an ebullience to him that I immediately admired.

If Scalia is replaced by someone nominated by Obama, Clinton, Sanders, or Trump, you can kiss the last vestiges of the Constitution away. It is bad enough now. In the era of “protected categories,” it makes no sense to speak of “equality under the law.” Those excluded (white men, for example) are not protected. In the current atmosphere, moreover, federalism is a joke, and so is the idea of limited government. One more vote and we will no longer be in retreat. It will be a rout; John Roberts, who is a coward, will join the other side; and radical willfulness of the sort exemplified by the current President will replace even the semblance of lawfulness.

Think about the situation we are in. The Republicans won by a landslide in 2010 and again in 2014. But elections — to the legislature — no longer matter. The executive agencies, battered by the President, will issue regulations that have the force of legislation; and unless they are struck down by the courts and ultimately the Supreme Court, the whim of the President will be the law of the land.

If you want to know why a thug like Donald Trump has emerged as the Republican front-runner, you have to consider the fact that the Republicans can run up majorities larger than those they achieved in the past at any time since 1928, and it has no effect at all. They are too timid to exercise the power of the purse. Legislative supremacy has in effect been abandoned. What we have borders on a dictatorship of the executive; and, in that, the Republicans have acquiesced.

Over the next few months, as you consider whom to support, ask yourself this, and then pose the same question to yourself over and over again, “Which of these candidates is a genuine advocate of constitutional government? Which of these candidates has the force of will and the grit to rein in and roll back the administrative state?”

Forget immigration. Forget tax plans. Forget Obamacare. Forget ISIS. Forget Russia (but do not forget China). Our difficulties in these regards are symptoms of a larger disease. The only question that will matter ten years from now is whether we will be ruled under the Constitution by law or without a constitution by executive fiat, and I would submit that neither of the surviving Democratic candidates nor the leader in the Republican race can be trusted in this regard.

For more than a century now, we on the right have temporized. There comes a time when there is no more room for compromise. We must either surrender and accept our fate as subjects. Or we must fight!

I am confident that if the Justice I met at Vice President Cheney’s Christmas Party were sitting where you are now sitting, he would fight. Read his opinions, and you will see what I mean. Read his opinions, and then seek out a candidate intent on doing what Scalia would do if he had the chance.

Members have made 69 comments.

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  1. Profile photo of Saint Augustine Member

    Paul A. Rahe:

    But Scalia knew arrant nonsense when he saw it, and he was prepared to call a spade a spade. His opinions — especially, his dissents — are in consequence a joy to read. The man could write; and, my oh my, could he think.

    Indeed.

    It actually takes a great mind to appropriately apply such language as “jiggery-pokery” and “applesauce.” These were no “mystical aphorisms of a fortune cookie.” Those Ricocheti who know not of what I speak could always “ask the nearest hippie.”

    • #1
    • February 13, 2016 at 5:07 pm
  2. Profile photo of Saint Augustine Member

    Paul A. Rahe:If Scalia is replaced by someone nominated by Obama, Clinton, Sanders, or Trump, you can kiss the last vestiges of the Constitution away. It is bad enough now. . . . “equality under the law.” . . . federalism . . . the idea of limited government. One more vote and we will no longer be in retreat. . . .

    Hear, hear!

    Legislative supremacy has in effect been abandoned. What we have borders on a dictatorship of the executive; and, in that, the Republicans have acquiesced.

    Even legislative equality or a balance of powers amongst the three branches has been abandoned.

    Over the next few months, as you consider whom to support, ask yourself this, and then pose the same question to yourself over and over again, “Which of these candidates is a genuine advocate of constitutional government? Which of these candidates has the force of will and the grit to rein in and roll back the administrative state?”

    Indeed.

    The only question that will matter ten years from now is whether we will be ruled under the Constitution by law or without a constitution by executive fiat, and I would submit that neither of the surviving Democratic candidates nor the leader in the Republican race can be trusted in this regard.

    Indeed.

    And all very well put, Sir!

    • #2
    • February 13, 2016 at 5:15 pm
  3. Profile photo of WI Con Member

    I’ve been thinking often of the fissures on our side, how could we unite under one banner. This may be the event that gives us pause to seriously consider the abyss which we stand in front of. The Lord works in mysterious ways.

    The good Professor didn’t name names but I will. Cruz and Rubio are the two most viable candidates left to beat Trump and Hillary/Sanders. Let the best man win but for those supporting candidates that seem marginal: Bush, Kasich and Carson – it’s time to rethink that and select for the semi-finals already.

    • #3
    • February 13, 2016 at 5:16 pm
  4. Profile photo of Paul A. Rahe Contributor
    Paul A. Rahe Post author

    WI Con:I’ve been thinking often of the fissures on our side, how could we unite under one banner. This may be the event that gives us pause to seriously consider the abyss which we stand in front of. The Lord works in mysterious ways.

    The good Professor didn’t name names but I will. Cruz and Rubio are the two most viable candidates left to beat Trump and Hillary/Sanders. Let the best man win but for those supporting candidates that seem marginal: Bush, Kasich and Carson – it’s time to rethink that and select for the semi-finals already.

    I am keeping my powder dry. But if force to speak my mind on this subject today, I would say what you said.

    • #4
    • February 13, 2016 at 5:21 pm
  5. Profile photo of Front Seat Cat Member

    Does this mean that all of the work that the Supreme Court was scheduled to review comes to a halt until the new appointee because it would be unbalanced? In other words, the Republicans can oppose any Obama nominee ? I am unclear as to how it works in this case.

    • #5
    • February 13, 2016 at 5:22 pm
  6. Profile photo of Sandy Member

    All true, unless the Congress asserts its own right to interpret the Constitution as an equal branch. Likely? No. Possible? Yes.

    • #6
    • February 13, 2016 at 5:28 pm
  7. Profile photo of billy Inactive

    Front Seat Cat:Does this mean that all of the work that the Supreme Court was scheduled to review comes to a halt until the new appointee because it would be unbalanced? In other words, the Republicans can oppose any Obama nominee ? I am unclear as to how it works in this case.

    A good backgrounder:

    There’s Ample Precedent For Rejecting Lame Duck Supreme Court Nominees

    • #7
    • February 13, 2016 at 5:30 pm
  8. Profile photo of Brian McMenomy Member

    I’ll have a post on this later, but the Senate needs to stand up and be the Senate; the saucer that cools the coffee. There’s no reason why the Court can’t work with 8 justices until the people weigh in on who they want in that seat for the next 30-40 years. If Obama tries to ram someone through, not only don’t vote on them, but get out front in a media blitz why this President, with such little regard for the Constitution, should not be allowed to hurl the balance of the Court wildly to the left, especially as a lame duck.

    • #8
    • February 13, 2016 at 5:31 pm
  9. Profile photo of Tom Meyer, Ed. Editor

    A wonderful remembrance. Thank you.

    • #9
    • February 13, 2016 at 5:42 pm
  10. Profile photo of Tom Meyer, Ed. Editor

    Paul A. Rahe:Forget immigration. Forget tax plans. Forget Obamacare. Forget ISIS. Forget Russia (but do not forget China). Our difficulties in these regards are symptoms of a larger disease. The only question that will matter ten years from now is whether we will be ruled under the Constitution by law or without a constitution by executive fiat, and I would submit that neither of the surviving Democratic candidates nor the leader in the Republican race can be trusted in this regard.

    • #10
    • February 13, 2016 at 5:42 pm
  11. Profile photo of billy Inactive

    Saint Augustine:

    Paul A. Rahe:

    But Scalia knew arrant nonsense when he saw it, and he was prepared to call a spade a spade. His opinions — especially, his dissents — are in consequence a joy to read. The man could write; and, my oh my, could he think.

    Indeed.

    It actually takes a great mind to appropriately apply such language as “jiggery-pokery” and “applesauce.” These were no “mystical aphorisms of a fortune cookie.” Those Ricocheti who know not of what I speak could always “ask the nearest hippie.”

    Here is a collection of excerpts from his opinions.

    My favorite, “It did not do so, I think, because the juice is not worth the squeeze.”

    • #11
    • February 13, 2016 at 5:43 pm
  12. Profile photo of Whiskey Sam Inactive

    Well said, Dr Rahe.

    • #12
    • February 13, 2016 at 5:48 pm
  13. Profile photo of Jules PA Member

    Professor Rahe,

    Thank you for weeding through the detritus that litters our conversations, and for leading us to the truth.

    THIS post is why we need you here with us. Thank you.

    • #13
    • February 13, 2016 at 5:50 pm
  14. Profile photo of Jules PA Member

    Front Seat Cat:Does this mean that all of the work that the Supreme Court was scheduled to review comes to a halt until the new appointee because it would be unbalanced? In other words, the Republicans can oppose any Obama nominee ? I am unclear as to how it works in this case.

    I may be incorrect, but if the Supreme Court is split evenly, then the decision of the lower court would stand.

    • #14
    • February 13, 2016 at 5:52 pm
  15. Profile photo of Gumby Mark Member

    Jules PA:

    Front Seat Cat:Does this mean that all of the work that the Supreme Court was scheduled to review comes to a halt until the new appointee because it would be unbalanced? In other words, the Republicans can oppose any Obama nominee ? I am unclear as to how it works in this case.

    I may be incorrect, but if the Supreme Court is split evenly, then the decision of the lower court would stand.

    That is correct.

    • #15
    • February 13, 2016 at 5:57 pm
  16. Profile photo of Jules PA Member

    Mark:

    Jules PA:

    Front Seat Cat:Does this mean that all of the work that the Supreme Court was scheduled to review comes to a halt until the new appointee because it would be unbalanced? In other words, the Republicans can oppose any Obama nominee ? I am unclear as to how it works in this case.

    I may be incorrect, but if the Supreme Court is split evenly, then the decision of the lower court would stand.

    That is correct.

    Bourbon speaks the truth. 🙂 ha ha.

    • #16
    • February 13, 2016 at 6:08 pm
  17. Profile photo of Saint Augustine Member

    I initially thought I was borrowing from Thomas here, but as I’m watching the video on Peter Robinson’s thread I’m thinking it was probably Scalia:

    [Originalism] is the view that should be considered correct by default, and I have no reason to think otherwise. The burden of proof lies with the objector to Originalism.

    This is how written language normally works when people with some facility for reading read things written with at least a modicum of clarity. It’s why, if you disagree with me, you are able to disagree with me and not merely with the words you are reading.

    • #17
    • February 13, 2016 at 6:24 pm
  18. Profile photo of Saint Augustine Member

    Same place:

    On Monday I say, “Here is a wonderful document. It establishes a federal republic based on checks and balances with the purpose of protecting our natural rights and securing the blessings of liberty. It is a living document, and explains how we can update it if we need to.” And you say, “This is a good document.” OnTuesday I say, “The document has some new sentences. Now it also says we should end slavery.” And you say, “That is also good.”

    On Wednesday, however, I say, “Now the document says there are some other rights that overrule some of the old ones.” And you say, “Can I read the new sentences?” I reply: “There are no new sentences. Just a new meaning.” You ask, “Where did the old meaning go, and how did you squeeze this new meaning into the old sentences?”

    On Thursday I say, “Now the document says we have the right to marry any way we like. Today two men can marry each other, and tomorrow they can marry five men or five women; after that, perhaps they can marry their mothers and their dogs if they like.” You ask when the document started meaning this, and I answer “Just this morning.” You ask when I updated the words to include this new meaning and I say, “The words have not changed since Tuesday.” It’s hard to say what will happen on Friday, but it probably won’t be good.

    • #18
    • February 13, 2016 at 6:26 pm
  19. Profile photo of Sidehill Gouger Inactive

    I don’t believe for a second Mitch McConnell will block the next nominee. We are living in depressing times with weak leaders.

    • #19
    • February 13, 2016 at 6:45 pm
  20. Profile photo of Crow's Nest Member

    My phone buzzed me awake in the middle of the night here. It was a push notification from the AP. “Obama says he will fulfill constitutional responsibility to name Scalia successor.”

    I had to read it three times. I still think I’m having a nightmare.

    • #20
    • February 13, 2016 at 6:52 pm
  21. Profile photo of Aaron Miller Member

    I share Gouger’s doubt about McConnell, but can imagine him holding fast on this too.

    Thanks for the Federalist article, billy. Unfortunately, it sounds like a recess appointment is possible… even if it’s only temporary.

    I also wouldn’t put it past this Administration to try something unprecedented since the stakes are so high.

    • #21
    • February 13, 2016 at 6:59 pm
  22. Profile photo of Saint Augustine Member

    Crow's Nest:My phone buzzed me awake in the middle of the night here. It was a push notification from the AP. “Obama says he will fulfill constitutional responsibility to name Scalia successor.”

    I had to read it three times. I still think I’m having a nightmare.

    Luke

    • #22
    • February 13, 2016 at 7:33 pm
  23. Profile photo of Boss Mongo Member

    Paul A. Rahe: Mitch McConnell, to his credit, has made it clear that Barack Obama will not be allowed to replace Justice Scalia.

    Not as confident in McConnell as you are, Prof. Maybe GOP leadership has given me the political version of battered wives’ syndrome, but color me skeptical.

    His statement said shouldn’t, not will not.

    • #23
    • February 13, 2016 at 7:38 pm
  24. Profile photo of James Gawron Thatcher

    Paul,

    You used the word “stakes”. Everything is on the line. A left wing packed court now will do a fantastic amount of damage. I want my Constitutional Amendment for a congressional override in support of minority opinions more than ever. Only problem, it will take too long to get it. Cruz is right about this. Who do you trust?

    The Kitchen just got 1,000 degrees hotter.

    Regards,

    Jim

    • #24
    • February 13, 2016 at 8:06 pm
  25. Profile photo of The Reticulator Member

    Paul A. Rahe:

    WI Con:I’ve been thinking often of the fissures on our side, how could we unite under one banner. This may be the event that gives us pause to seriously consider the abyss which we stand in front of. The Lord works in mysterious ways.

    The good Professor didn’t name names but I will. Cruz and Rubio are the two most viable candidates left to beat Trump and Hillary/Sanders. Let the best man win but for those supporting candidates that seem marginal: Bush, Kasich and Carson – it’s time to rethink that and select for the semi-finals already.

    I am keeping my powder dry. But if force to speak my mind on this subject today, I would say what you said.

    I am dying to know who said the stupidest thing on the SC subject in the debates tonight. (I don’t watch these debates; I rely on others to tell me about them.)

    • #25
    • February 13, 2016 at 8:22 pm
  26. Profile photo of John Hanson Thatcher

    It sounds as if the Senate is in recess right now, and if tomorrow, Obama names a recess appointment to the court it would stand and we would have a liberal dominated court until the recess appointment ended, unless McConnell can get a pro-forma session of the Senate into place prior to Obama making a recess appointment. I know everyone would scream, but it seems he could do it.

    • #26
    • February 13, 2016 at 8:25 pm
  27. Profile photo of The Reticulator Member

    Crow's Nest:My phone buzzed me awake in the middle of the night here. It was a push notification from the AP. “Obama says he will fulfill constitutional responsibility to name Scalia successor.”

    I had to read it three times. I still think I’m having a nightmare.

    Of course he should name a successor, and he will probably be devious about it, coming up with someone hard to reject. Republicans should not confirm unless it is somebody with demonstrated commitment to upholding the Constitution.

    • #27
    • February 13, 2016 at 8:27 pm
  28. Profile photo of Saint Augustine Member

    James Gawron:Paul,

    You used the word “stakes”. Everything is on the line. A left wing packed court now will do a fantastic amount of damage. I want my Constitutional Amendment for a congressional override in support of minority opinions more than ever. Only problem, it will take too long to get it. Cruz is right about this. Who do you trust?

    The Kitchen just got 1,000 degrees hotter.

    Regards,

    Jim

    I trust Cruz on this more than I trust any other candidates–and more than I trust Cruz on some other things.

    I don’t trust Trump on this at all. (He could alter that by repeatedly promising to appoint Cruz, Paulsen, or Lawson to replace Scalia.)

    I tend to think we can trust Rubio on this, but maybe a bit less than Cruz. Am I right?

    • #28
    • February 13, 2016 at 8:28 pm
  29. Profile photo of The Reticulator Member

    Saint Augustine:

    James Gawron:Paul,

    You used the word “stakes”. Everything is on the line. A left wing packed court now will do a fantastic amount of damage. I want my Constitutional Amendment for a congressional override in support of minority opinions more than ever. Only problem, it will take too long to get it. Cruz is right about this. Who do you trust?

    The Kitchen just got 1,000 degrees hotter.

    Regards,

    Jim

    I trust Cruz on this more than I trust any other candidates–and more than I trust Cruz on some other things.

    I don’t trust Trump on this at all. (He could alter that by repeatedly promising to appoint Cruz, Paulsen, or Lawson to replace Scalia.)

    I tend to think we can trust Rubio on this, but maybe a bit less than Cruz. Am I right?

    That’s about the way I see it. Rubio has not demonstrated the same ability as Cruz to hold up under fire from the hate machine. But he is capable of doing the right thing.

    • #29
    • February 13, 2016 at 8:33 pm
  30. Profile photo of James Gawron Thatcher

    Saint Augustine:

    James Gawron:Paul,

    You used the word “stakes”. Everything is on the line. A left wing packed court now will do a fantastic amount of damage. I want my Constitutional Amendment for a congressional override in support of minority opinions more than ever. Only problem, it will take too long to get it. Cruz is right about this. Who do you trust?

    The Kitchen just got 1,000 degrees hotter.

    Regards,

    Jim

    I trust Cruz on this more than I trust any other candidates–and more than I trust Cruz on some other things.

    I don’t trust Trump on this at all. (He could alter that by repeatedly promising to appoint Cruz, Paulsen, or Lawson to replace Scalia.)

    I tend to think we can trust Rubio on this, but maybe a bit less than Cruz. Am I right?

    Aug,

    I think we would be in good shape with Rubio or Cruz. The question is Trump. Jeb actually made a very good argument against Trump. He said Ronald Reagan had made a full change to conservative many years before the Presidential run. He was a full blown conservative as Governor of California. Trump has decided he was a conservative very, very recently. How can we judge how deep this goes? Now it is even more critical to know. The next President may be appointing multiple justices. If Trump is just making deals who knows what that is going to mean.

    Regards,

    Jim

    • #30
    • February 13, 2016 at 8:42 pm
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