Justice Antonin Scalia is irreplaceable. His wit, his unwavering constitutional philosophy, his unparalleled ability to write with insight and passion, and his larger than life persona make him a singular figure in the modern history of the Supreme Court.
But while the man cannot be replaced, sooner or later his seat on the Supreme Court will be filled. The fact that his replacement has already become highly politicized does not point to problems of a clash between the President and Congress. Nor, does it merely signal a divide between Republicans and Democrats.
The instant contentiousness that this vacancy creates reveals the following truth: the most important political institution in our nation is the Supreme Court. I chose those words carefully.
The Supreme Court was not designed as a political institution. As Alexander Hamilton famously (and erroneously) predicted, it would be the “least dangerous branch” of the federal government. The Court was never designed to make law. It was intended to have judicial power which meant that it was to apply existing law to factual disputes to reach a just outcome between the parties.
A branch of government that makes law is a political branch. We have all heard and read the words: “The Supreme Court legalized same sex marriage.” This is literally true. The Court enacted a de facto amendment to the United States Constitution in this decision. The same thing is true about abortion and a host of other highly contentious issues of our day. The Supreme Court routinely makes law in the guise of constitutional interpretation.
Justice Scalia was the foremost opponent of a political judiciary. He consistently argued that the Court should not substitute its policy judgments for the decisions of the elected representatives of the people.
If President Obama intended to appoint a justice who would follow the existing law according to its original meaning, then a Republican Senate would quickly and easily confirm his choice. But, the reality is that the president wants to put a younger activist judge on the Supreme Court so that the Court can continue on a path of making policy decisions that Obama favors for decades after his term of office is over.
The solution to this issue is not merely for the GOP to stall until after the election in hopes that a justice more like Scalia can be named. We need to take the Supreme Court down a notch or two in its importance.
The only way this is going to happen is by a constitutional amendment which places restraints on the ability of the Supreme Court to overturn the political decisions of elected officials via newly invented constitutional rights.
Some possibilities for checking the power of the Court would include:
Giving the state legislatures (by a super majority of perhaps 30 states) the ability to vacate decisions of the Supreme Court.
Have the states appoint the Supreme Court. If members were given single terms of four years, and if we increased the Court to thirteen justices, then every state would have a justice on the Court for four out of every sixteen years.
Adding to the grounds for impeachment of a justice, the deliberate refusal to follow the original meaning of the Constitution.
Approximately twenty times, the Supreme Court has said that the only realistic check on its power is its own internal sense of self-restraint. This violates a fundamental premise of the American founding. No branch of government was supposed to have the final authority to determine the extent of its own power. There were intended to be effective checks and balances. These do not exist.
Such structural changes will never come from Washington, DC. Congress and the Court have a cozy relationship that over time follows the prime directive of Washington: federal power shall increase.
This is one of the biggest reasons why a number of states have already called for an Article V Convention of States to rein in the abuse of power by the federal government.
Everyone knows that the individual right to keep and bear arms is hanging in the balance of the next Supreme Court appointment. It was a five to four vote last time and one of the five is now gone.
Our rights should not hang by such a delicate balance in a body that the people do not elect.
Yes, indeed, the next justice should be an originalist in the mode of Antonin Scalia. But, the long term solution for this nation is to return our decision making to the people and their elected legislators and to dethrone the imperial judiciary. We need to convene a Convention of States.
Michael Farris is chairman of the Home School Legal Defense Association and chancellor of Patrick Henry College. He serves as head of the Convention of States project.