WASHINGTON — The status of the Supreme Court and its role in American politics will rise to an unprecedented and historic level after the death of Justice Antonin Scalia.
And few people would have been more conflicted about that than Scalia himself.
“The Imperial Judiciary lives,” Scalia once decried in one of his famed dissents, this one in opposition to the court’s 1992 decision to reaffirm a woman’s right to an abortion.
Twenty years later he was still making the same point. This idea of the imperial judiciary — that the Supreme Court had become too strong, too central, too powerful — animated much of Scalia’s justice philosophy and writing.
“This case is about power in several respects,” he wrote of the decision that struck down the federal ban on recognizing same-sex couples’ marriages in the Defense of Marriage Act. “It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.”
The court’s decision to hear the case and then to strike down DOMA “spr[u]ng forth from the same diseased root: an exalted conception of the role of this institution in America.”
But on the day of his death, the Supreme Court and its role could not be more exalted.
The flags were lowered. The Republicans held a moment of silence for him before their debate in South Carolina. And President Obama, presidential candidates from both parties, and high-ranking senators have already drawn the battle lines on an intense, protracted political fight over Scalia’s replacement.
The path forward: Obama will offer up a nominee; the Republicans in the Senate will refuse to move the nomination forward; and the politics of the Supreme Court could take center stage in a way no one alive today has ever seen, in the midst of an already unconventional presidential primary, at a time when social media rapidly changes the way people, interest groups, and grassroots movements interact with politics.
In death, Scalia has created an unprecedented situation in American politics.
Despite his misgivings about the role the Supreme Court has ascended to in America’s constitutional democracy, however, it’s not entirely clear that Scalia would object: A national debate over the role of the Supreme Court playing prominently in White House, Senate, and presidential campaign politics in the coming months might be the sort of thing that would bring a grin to his face.
It was Scalia, after all, who — more than any other modern justice — made himself into a public, political figure. He spoke out forcefully, not just in his opinions but also in books and in public speeches, about his views of the law, as well as politics, and the way they affect Americans’ daily lives.
Scalia enjoyed — even thrived on — vigorous debate, with elbows thrown, over these issues. He had no problem, moreover, with opponents coming at him with just as vigorous of disagreements. (In fact, his close friendship with Justice Ruth Bader Ginsburg could be seen as one of the reasons why she, in more recent years, has positioned herself in a way as his liberal counterpart: becoming just as public and political of a figure — not shying away from throwing elbows herself.)
Now, however, the legal debate in this country will proceed without Scalia. There won’t be any speeches or interviews from him, no footnotes in dissents that serve a double purpose as commentary, for the first time in more than three decades.
Overnight, Justice Antonin Scalia’s now empty seat on the Supreme Court has become the symbol of the power that the justices hold over Americans’ lives.
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