Justice Scalia: His Legacy and What Comes Next...

If you haven't been living under a rock for 24 hours, you have by now heard of the sad passing of Supreme Court Justice Antonin Scalia. At 79, he was found dead in Texas on February 13th. Given that it is an election year, you don't need the 24 hour news media to tell you why this is a big deal. And the political implications are incredibly important - I'll get to those in a moment - but first, I think we should remember the man.

'Interesting' is a common word used to describe Scalia. His majority opinions and dissents are notoriously entertaining for those of us who can be entertained by such things. 'Flamboyant' is another word often attributed to his comments and writings, as he did not mince words. While considered a 'staunch conservative' (more on that later), he was well liked by many of his liberal colleagues not the least of which, notoriously leftist, Justice Ruth Bader Ginsberg. By those who know him, he will be greatly missed. Given the gut instinct to immediately discuss the political implications of anything in this insane campaign season, I want it to be clear that Justice Scalia's death is sad and I do appreciate he is a person, not just a political pawn. Do a light google search and you'll find countless people, left and right, who believed Scalia to be a great Justice and a man of integrity, personal opinions on rulings aside.

Now, in the wake of his death, and with the 'what next?' question hanging in the balance, we will hear the pundits talk about a lot of different things involving what is 'fair' in the appointment process, and whether it's 'right' to wait on a confirmation or not. Most of all, you'll hear them talk about 'styles' of justices or, more academically, 'judicial philosophy'. Words like 'Originalist', 'Strict Constructionist', 'Legal Realism', 'Judicial Activist', 'Conservative Judge', 'Liberal Judge', and 'Legislating from the bench', will be thrown around regularly. Get use to it. But first, let's define them:

Originalist: Originalists (which Scalia considered himself to be) belong to a judicial philosophy that The Constitution should be interpreted as it was originally written and within the context of it's original publication. That is to say, rulings should be consistent with the intent of those who wrote the Constitution. There is, of course, some subjectivity here. For issues that would never have faced the Founders, one must use the context clues of the Constitution to discern what they would have intended.

Strict Constructionist: Similar to Originalism, the Strict Constructionist limits judicial interpretation to the written text of the Constitution. This term has come to mean, in the modern age, any judicial philosophy that is conservative in its leaning - not politically conservative, but rather conservative in interpreting. Clarence Thomas and Antonin Scalia are both considered 'strict constructionists' in general terms.

Legal Realism: Legal realists find the Constitution and official legal apparatus insufficient to make judgements on all cases. Often they cite the changing times and the complexity of cases that reach the appellate courts as grounds to look outside the Constitution in forming an opinion about intent. In other words 'the constant development of unprecedented problems requires a legal system capable of fluidity'. 

Judicial Activist: This is considered someone who, regardless of legal precedent or Constitutional interpretation, rules how they wish to see the law rather than how the laws should, reasonably, be interpreted.

Conservative Judge: This is a subjective term. It mostly means a judge that rules in line with the other Conservative judges. These judges usually lean toward strict constructionism though can often become activists where social issues are involved.

Liberal Judge: This is a subjective term. It mostly means a judge that rules in line with the other Liberal judges. These judges are usually legal 'realists' and often activist judges, though they can tend toward strict constructionism where criminal justice is concerned.

Legislating From the Bench: This means using your position as a judge to go over the heads of the legislative branch to either protect laws you like, without Constitutional grounds (see Obamacare), or strike down laws you don't like regardless of compelling Constitutional grounds.

Now that we have these terms generally defined (and I encourage you to read more about these terms and philosophies), I can explain what we should be searching for and why no justice will likely meet the criteria but the likes of Judge Napolitano.

As libertarians, generally speaking, what you want is a justice that interprets the law as it was intended to be interpreted by the Lockean Founders. Sorry, 'legal realists', as logical as it may sound to believe that the Founders couldn't provide insight on issues in the 21st Century, it's not really true. The Constitution is set up the way it is to LIMIT the powers of the Government. If it's not in there, then the Government doesn't have the right to prohibit it. But that's a tough pill to swallow for Statists.

That's not to say all rulings are cut and dried. Black and White. There are plenty of sides that can be argued, even within the strictures of the Constitution. And most cases before the Supreme Court are multifaceted and complex. Let's look at Roe v. Wade for a moment. This is, primarily, a battle between a woman's right to privacy and a fetus' right to life. Depending on how you extend Constitutional Rights, the fetus could have no legitimate right to life and therefore the ruling could be 'Constitutional'. Or, the fetus could have rights to life and therefore its explicit rights trump the implied rights to privacy of the mother. It's hard to wonder how anyone could even make a ruling about abortion without letting activism creep in.

But, generally speaking, the vast majority of cases that come to the Supreme Court are nothing like Roe v. Wade. More of them look like Kelo v. New London, and in that case, Judicial Activism ruled unconstitutionally to extend Eminent Domain to private companies that might want to take your land by force of the government (see: Donald Trump).

Anyway, you get the idea. So long as we let personal bias determine Constitutional Rights, we don't have any Constitutional Rights. All you need is five justices ruling as they see fit. Judicial Activism is a slippery slope into tyranny. Better to be conservative in your interpretation of the Constitution and side with individual liberty - as the Constitution does.

When a pundit says 'strict constructionist' he usually means 'Conservative', though. Certainly Scalia and Thomas have ruled outside their personal beliefs in order to provide the best interpretation of original intent of the Constitution. I'd argue that 'Conservative Judges' have shown a willingness to do this far more often than 'Liberal Judges' but that's debatable. On the other hand, even as they consider themselves 'strict constructionists' or 'originalists' Scalia and his conservative colleagues willfully ignored the 14th Amendment's intent in their dissent of Obergefel v Hodges (gay marriage ban ruling).

Scalia has been accused by liberals of being an 'authoritarian' justice, always siding with the government. Certainly that's unfair. I would say you could argue that he had in instinct to assume prosecutors and police were acting in due diligence. That is not to say his opinion could not change as the facts of the case came out. In reality, Scalia was a great defender of the Bill of Rights, more so than his liberal counterparts.

Where he got in the weeds was on social issues, homosexuality in particular, where he could not separate his personal bias of homosexuality as a destructive 'lifestyle' and often failed to uphold the civil liberties of gay people. And it is on this point that liberals feel they have the upper hand. You don't want a 'Conservative' justice. He will scale back all the social progress we've made!

But do not let this argument fool you. If Scalia and his Conservative colleagues have been backward and misguided in their attempt to pretend that civil liberties do not apply to a gay 'lifestyle', liberal activists judges have done irrevocable harm to liberty across the board. As previously mentioned, Liberal judges (and swing vote Kennedy) ruled that  Eminent Domain constitutionally extends to private businesses wishing to force people off their land. There is no such Constitutional protection for private companies. If you can take the whiplash for a moment, the stock of liberal judges also dissented in the Citizen's United case that a Company didn't even have the right of free speech. So, following along, they have the right to force you off your land for a Walmart, but once they do, they can't freely and transparently donate money to campaigns.

The Obamacare ruling, too, was a nothing more than legislating from the bench. In order to protect a wildly unpopular and wildly contested Federal Mandate that free citizens be forced to buy insurance or be punished, the liberal justices (and inexplicably, Chief Justice Roberts) said that, essentially, the government can fine you however they wish so long as they call it a tax. The implications of that are obvious. And the motivation to protect legislation of a Congress and President they are politically aligned with is also obvious.

Legal books are filled with examples of liberal judges, operating under the guise of 'Legal Realism', and setting unconstitutional precedent, but often people don't get as excited about eminent domain,  constitutionality of income tax, the moving of rights from the Legislative Branch to the Executive Branch, etc as they do about gay marriage or sodomy laws. However, it could be argued that the erosion of individual liberty by liberal judicial activists has been far more extensive than by conservative activist judges.

So now, what to do? If Scalia had died this summer, it's likely everyone would accept that the Republican Controlled Senate would wait out the election before confirming any appointments. But it's February. Terrible timing. That said, I don't see Republicans accepting any of Obama's appointments. It would be changing out a revered Conservative semi-strict constructionist for someone who can reasonably be assumed will be a 'legal realist' with activists designs. I'm speaking from the perspective of someone who has already witnessed the sort of justices the Obama Administration promotes.

And thus, the Supreme Court just became one of the biggest issues in the 2016 election. I think we can all agree that no justice we get will be perfect. Realistically speaking, though, if there is a chance of stoping a majority of liberal activists judges who wish to legislate from the bench one must take it. The Gay Marriage ruling will not be overturned. Roe v. Wade isn't going anywhere. I promise you. But another case like Obamacare most certainly will face the Supreme Court and the liberal justices have made it more than clear that they will put their opinion of the legislation over what is actually Constitutionally protected.

It's scary to think of what kind of Justice Hillary Clinton, or Bernie Sanders, or Donald Trump would appoint. While Trump and Clinton's appointment would likely support Corporatist measures and Government overreach. Sanders's appointment would likely support the eradication of individual liberty for individuals who make over a certain income. Neither scenario is ideal. The rest of the GOP candidates would most probably put up someone like Scalia or Thomas or Alito. Given what we know about these justices, they are the best possible scenario when you look at the alternative. In my opinion, Scalia's death just gave the Republican Party an opportunity to explain the importance of a fundamentalist interpretation of the Constitution and how that perspective is precariously close to being nullified even in the Governmental body that should be free of political bias and a faithful servant of the Constitution.