Antonin Scalia has been widely, and justly, heralded as one of the greatest legal minds ever to serve on the U.S. Supreme Court and as someone who had a profound impact on the course of American law for almost three decades.

So it was somewhat unseemly that almost immediately upon the news of his passing, a political firestorm erupted over whether President Obama or his successor should pick Justice Scalia’s successor. Democrats were pulling for President Obama to make the choice while Republicans were arguing for whomever is elected president this November.


But it would be a mistake to look at this only from the perspective of the bitter partisan politics that has driven Washington for the last 25 years – although there is surely a measure of that in play.

Justice Scalia was one of the intellectual leaders of the so-called originalist movement, which believes it is the job of the Supreme Court to adhere as much as possible to the language of the Constitution and the probable intent of the framers. It is the Republicans who by and large identify with this approach.

Democrats, including President Obama, generally follow a less restrained approach, allowing much more leeway for the Supreme Court as well as appellate courts. Obviously, what the Constitution means to Americans in practical terms is a function of which approach holds sway at any given time. So the debate over who should choose Justice Scalia’s successor is much more than a matter of partisanship in the classic political sense.

In a 2001 interview with Chicago Public Radio, a still relatively unknown Barack Obama made the stakes clear:


If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK.

But the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.

And that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.


So it is no idle concern for Republicans if this president gets to pick someone to replace as pivotal a conservative presence on the court as was Justice Scalia. If Mr. Obama is able to pick someone who shares his own views on the role of government, the delicate balance on the court – made possible because of Justice Scalia’s presence – that sometimes held him in check would be overwhelmed. Of course, a Democratic victory in November would probably make for the same result. But, at least at the moment, such a victory is far from assured.



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