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Scalia’s Final Vote

eye on the news

Scalia’s Final Vote

The Supreme Court vacancy loomed large in the election last week. November 16, 2016
Politics and law

In life and death, Antonin Scalia was a crucial factor in Donald Trump’s victory over Hillary Clinton. The composition and future of the Supreme Court has long been a crucial concern for voters. Though Trump was in many respects a heterodox Republican, the vacancy caused by Scalia’s death energized and united the Republican Party.

Like any modern, mainstream political party, the GOP is a coalition of interest groups. Historically, the Republican coalition has consisted of classical liberals who believe in a government dedicated to the promotion of liberty and economic growth, and cultural—often religious—conservatives seeking to protect traditional norms from top-down change. The Constitution as written supports both aims; it protects liberty and yet creates the decentralized mechanism of federalism, which accommodates most social change.

The Constitution protects liberty mainly through checks and balances. As written, the bicameral system (tricameral, if you include the president) requires substantial majorities at the federal level to impose new regulations. The Constitution also prevents the federal government from imposing new social norms. The enumerated powers don’t give Congress general authority over such issues. Instead, the federal structure allows the states to make decisions on these matters, a structure that permits social change to bubble up from below. States could have permitted abortion—as many would have done without Roe v Wade—and they could (and did) legalize same-sex marriage. But these changes in social norms came about organically. Thus, the Constitution as written remains a document that fuses the classical liberal and conservative visions of society. Moreover, originalism—the interpretive methodology that follows the Constitution—also unites classical liberals and traditional conservatives in their respect for the rule of law.

No one articulated these truths about the Constitution better than Scalia, and he did so with clarity and verve, making them clear even to people without legal training. In particular, he showed how substantive due process—the ill-founded doctrine responsible for the Supreme Court’s rulings that abortion and same-sex marriage were constitutional rights—inevitably becomes an engine of elite social change, imposed from the top. This is why not only his death but also his life factored into Trump’s victory.

Trump was, to put it mildly, not a typical candidate of the Republican coalition. But Scalia’s life and death provided him with the opportunity to seize on the vacancy as a powerful wedge issue against his Democratic opponent. Hillary Clinton made the opening wider by promising to fill the Scalia vacancy with a candidate who would meet various litmus tests of progressivism, like overruling Citizens United and empathizing with the favored groups of her coalition. She hardly seemed concerned about religious liberty, though it is a right actually contained in the Constitution. She said nothing about the rule of law.

By contrast, Trump promised to appoint Scalia’s successor from an outstanding list of judges. This promise gave comfort to all parts of the Republican coalition, not least because Scalia had made the importance of the Supreme Court so obvious to them all. It is a tribute to Scalia’s intellect and style that even in death, he may well have elected a president of the United States.

Photo by Chip Somodevilla/Getty Images

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