The sudden death of Supreme Court Justice Antonin Scalia created a vacancy on the Supreme Court. The court’s balance could hold steady or shift, depending on the constitutional interpretive ideology of the person appointed to fill that position.
Scalia was a powerful conservative voice, both on and off the bench, but he didn’t define his role in political terms. Scalia subscribed to Herbert Wechsler’s theory of neutral principles, asserting that his political ideology as a conservative had little to do with his judgments as a justice.
Rather, Scalia described his work as a Supreme Court justice as that of a “textualist.” He was committed to the text of the Constitution and to a constitutional interpretation theory known as originalism. Originalism posits that the Constitution should be interpreted in accordance with the common understanding of the words at the time the drafters wrote them.
So, to Scalia, the Constitution was not a living document. Upholding it meant adhering to the letter of the document and resisting the temptation to import contemporary ideologies into determining its meaning today.
When the text of the Constitution was silent on an issue such as abortion, Scalia’s approach was to point out that there was no such right granted in the text of the Constitution and, consequently, the legislatures of the various states should decide the issue.
In Planned Parenthood v. Casey — less well known than Roe v. Wade but establishing the current constitutional standards for the right to abortion — Scalia wrote in his dissent, “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Scalia goes on to state that he reaches the conclusion that the Constitution does not protect a woman’s terminating of her pregnancy, not because of his conservative ideology but because “the Constitution says absolutely nothing about it.”
Scalia also was known for his decisions limiting congressional power. In Shelby County v. Holder in 2013, the court, with Scalia in the majority, struck down the pre-clearance provisions of the federal Voting Rights Act. And in key cases involving the commerce clause power of Congress, Scalia joined a court majority to limit Congress’ power to criminalize guns near schools or require state officials to do background checks before issuing gun permits.
Scalia likely voted to curtail the power of Congress in these instances because he wanted to prevent Congress from violating the vertical separation of power between the federal and state governments imposed by the drafters of the Constitution. Scalia also understood that Congress, as a political institution, presents certain dangers to the overall democratic process if not properly constrained.
The current push by Republicans for President Barack Obama to shirk his constitutional duty to nominate and appoint a successor to Scalia is oddly opposed to the principle of originalism Scalia held so dear.
Article II Section 2.2 of the Constitution grants the president of the United States not only the power but also the duty to nominate and appoint judges to the Supreme Court. This is to be carried out “by and with the Advice and Consent of the Senate.” The Constitution says nothing about limiting the power of the president or relieving him of this duty if he is in his last term of service and there is an impending presidential election.
Consequently, we should urge our Senators to abide by the clearly written mandate of our most sacred of governing texts and to give the president’s nominee fair consideration on the merits.
Allowing the Senate to turn the appointment process into a political spectacle aimed at blocking the president’s fulfillment of his constitutional duty is an anathema to our democracy. Honoring the process outlined in our Constitution by implementing the text, regardless of the political consequence is consistent with Scalia’s view of constitutional interpretation.
I suspect the justice wouldn’t want it any other way.
Carla D. Pratt is Associate Dean for Academic Affairs and Nancy J. LaMont Faculty Scholar at Penn State’s Dickinson Law, where she teaches constitutional law.