The death of Justice Antonin Scalia raises many important questions about the Supreme Court of the United States.
Scalia was an arch-conservative who endorsed the death penalty, government spying and the flawed vote-counting of the Bush-Gore presidential election. Scalia opposed women’s control of their own bodies, limits on corporate political contributions and gay marriage, among other policies. Scalia practiced what is sometimes called “literalist” jurisprudence, based upon a rigid and narrowly textual understanding of the Constitution. His judicial opinions downplayed democratic principles and sanctioned the prerogatives of private ownership.
With Scalia gone, the Supreme Court is evenly balanced with four liberal and four conservative justices. The replacement to Scalia could tip the balance in either a liberal or a conservative direction. The Constitution gives the President the right to appoint Supreme Court justices (subject to Congressional approval), but Republican leaders insist they will stymie the appointment process until a new President has been elected.
While the outcome of this political struggle is important, and while Republican intransigence indicates contempt for democratic procedures, progressive citizens should use the opportunity afforded by Scalia’s death to re-evaluate the Supreme Court as a judicial institution. With a few honorable exceptions, the Supreme Court has customarily functioned to defend established property rights and constrain democratic progress. The makers of the Constitution founded the Court with these purposes in mind.
In a democratic society, is it reasonable that nine unelected judges with lifetime tenure are ultimate authority on the meaning of the Constitution? Is it reasonable that the actions and jurisprudence of these magistrates are exempt from periodic political review? Is it reasonable that this unelected panel controls exactly which cases it does or does not adjudicate? A democratic society requires an independent judiciary, but not one beyond the scope of democratic oversight.
Consider the issue of climate change. If our government authorizes significant actions to preserve the planet for future generations, these actions will surely conflict with traditional privileges of private property. Will the Supreme Court, adopting its usual conservative ideological posture, obstruct the path to environmental sanity? Will it mandate a political time frame drastically at odds with the ecological emergency humanity currently faces?
Reformers have suggested various ways of moderating excessive Supreme Court power. These include judicial retention elections, reducing the Court’s control over its own docket, enabling Congress to overturn certain Court decisions and varying the number of Supreme Court justices (the Constitution does not specify a number). Progressive political thinking is bold thinking. It subjects every institution – including the Constitution, Congress, and the Supreme Court – to critical analysis and possible revision.
The Rocky Mountain Peace and Justice Center’s “Peace Train” runs every Friday in the Colorado Daily.