Last Friday evening or early Saturday morning,supreme court justice Antonin Scalia died.Indisputably the foremost adherent to and definer of strict constructionist thought Scalia turned the supreme court away from constitutional “progressivism”(a living document)and the interpretation of legislation as an expression of the will of the legislators, to the strict meaning of the words when written.He was not popular within the court because he was combative and acerbic but his was a soaring intellect that shone both in writing majority decisions and in dissent.
We have spoken of him in this blog.(Yale Law School honoring 4 justices and his defense of limiting minority aspiration to less arduous channels.)Despite being a graduate of Harvard law he admitted being intimidated by the WASP power elite who denied him Princeton undergraduate access.The son of ambitious and successful immigrants he needed to be constantly on the alert and prepared to deal with challenge.He shaped the rhetoric and strategy of conservative republican thought,in my view,more than any other.
Now the nonsense begins.”no nomination should be made…it is a dishonor…” the presidency is not a three year responsibility and the president has the obligation to propose a nominee to the court.It is unlikely that the nominee will be approved by this senate but they are obliged to consider the nomination.
The likelihood is that the politicized court will stand four to four for sometime and that some five to four decisions that are unannounced will have Scalia’s vote voided and be returned to the ruling of the referring court.The big problem for the political parties is that the political nature of the court is now exposed and the next election will produce a referendum response from the voters!(particularly since the next president will probably appoint two or three justices.)