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Supreme Court of the United States

Justice Scalia’s Final Dissent

October 17, 2017

The political tsunami triggered by Supreme Court Justice Antonin Scalia’s death is more than a commentary on the state of American government. It’s also his last warning—his final dissent, if you will—about the dangers of giving too much power to the Supreme Court.

This is the very thing the Founding Fathers were trying to avoid: Culture and law being determined by a single individual or a political position (like Supreme Court justice).The doctrine of separation of powers was designed to prevent too much power from being consolidated into the hands of a single person, group, or branch of the government. But because of the overly powerful position the Supreme Court has assumed in mandating both law and culture, "separation of powers" is becoming a thing of the past. The vacancy left on the court is being positioned a political black hole, even though the last thing Scalia wanted was to be the star around which the whole of American law and culture turns.

Hours after news of Justice Scalia's death broke, President Obama stated that he would "do his duty" in nominating a new justice, and that he expected the Senate to approve that nomination. Senate Majority Leader Mitch McConnell made it clear that Senate approval would be hard to come by. Republican senators bolstered their stance with a recently unearthed a 1992 speech by then-Senator Joseph Biden, where he declares that then-president George H. W. Bush should refrain from nominating a Supreme Court justice in an election year. The only sure thing is that this will be messy.

Nothing has illustrated the potential for messiness quite as clearly as the oral arguments for Whole Woman’s Health v. Hellerstedt March 2. Whole Woman’s Health, the “most important abortion case” to come before the Supreme Court in two decades, considers Texas House Bill (HB) 2, a state law that requires abortion businesses to meet basic safety standards, including hallways wide enough for gurneys in case of emergency and admitting privileges for abortionists at local hospitals, in case something goes wrong (and things do go wrong).

This is a common-sense, pro-woman law designed to safeguard women’s health. But rather than potentially cross the increasing sharp party lines on the Supreme Court and uphold a common-sense women’s health law, the Supreme Court may choose to return the case to the lower court and wait until after the appointment of a new justice for a rehearing. If this happens, women’s health and safety will also hang in the balance of a single appointment to the bench.   

The checks and balances that surround the appointment of Supreme Court justices ought to reassure people that the next justice will be an individual who is not at odds with the convictions and traditions of the American people: The president appoints a nominee, who must be approved by the Senate, the elected representatives of the people constitutionally-empowered in its “advice and consent” role. And despite all the posturing on both sides of the party line at different points in history, the full use of those checks and balances, up to and including a Senate refusal to approve a nominee before the election of the next president, is completely justified.

The Founders established this complex and even frustrating system of government to prevent something like this from happening: one person, in one moment, determining everything. Separation of powers, different branches, balance of powers, it was all crafted to make sure that no one person would have control over every American. In America, the people who should have control are—the people.

But people aren't reassured. On both sides, they're terrified of the possible outcomes of filling this one position. Their terror, and the earth-shattering impact of his own death, is Scalia's last word on the subject of judicial supremacy, a political doctrine he warned against throughout his tenure on the bench. 

Judicial supremacy is the belief held by many Americans, including at least a few justices, that the Supreme Court is not merely the interpreter of the law (the Constitution), but is in fact that law. Even several Republican presidential candidates who would describe themselves as conservatives and originalists have betrayed their implicit acceptance of this myth when they describe Supreme Court opinions as "the law of the land." These opinions are not the law of the land; they are opinions about the law of the land—a very different thing. 

Scalia did not believe that he was creating law in his opinions. That is why he stated so often that he did not believe the Court had the jurisdiction to rule on issues, perhaps most notably in United States v. Windsor. He simply did not see that the Constitution (the law) was explicit on those issues, so the decision-making should return to the people. He warned repeatedly about the dangers of giving nine judges (or, really, one) the power to overturn history and culture in a single stroke. The whole point of the American political system is that these vastly significant decisions are not made by a small group of people if possible (exceptions include military responses where speed and strategy are necessary, which is why presidential candidates’ perspective on the use of military force should be made very clear during their campaigns). Wide-reaching cultural decisions should be made by the people of the United States through the democratic process.

It’s clear that this judicial appointment is going to be vastly significant for the next several decades of American law and culture—more significant than it should be, Scalia and the Founding Fathers would say. People are asking if this will lead to a constitutional crisis. Scalia would say that’s the wrong question to ask. The fact that his death and replacement could potentially alter the generation – or century – of American law and culture illustrates his life-long conviction: that the power given to the Supreme Court already has led to a constitutional crisis by giving the power over culture, law, and ideas to nine justices, instead of the American people.


Alliance Defending Freedom

Alliance Defending Freedom

Non-profit organization

Alliance Defending Freedom advocates for your right to freely live out your faith


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