Damon Root is a senior editor at Reason magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court.
The sudden death of Justice Antonin Scalia has thrown the future of the U.S. Supreme Court into doubt.
Appointed in 1986 by President Ronald Reagan, Mr. Scalia was an outspoken legal conservative who maintained that the U.S. Constitution must only be interpreted according to its original meaning at the time of its ratification. He was closely associated with the doctrine of "judicial restraint," arguing that the Supreme Court should rarely interfere with the government in cases dealing with the regulation of social issues, such as laws that restrict abortion or outlaw gay marriage. In 2003, for example, when the Supreme Court ruled that state laws prohibiting "homosexual conduct" violated the U.S. Constitution, Mr. Scalia attacked his fellow justices for writing an opinion "that has largely signed on to the so-called homosexual agenda."
Yet despite his reputation as a right-wing culture warrior, Mr. Scalia frequently sided with the Court's liberals in cases dealing with aggressive police tactics and the rights of criminal defendants. When the Supreme Court upheld a drug conviction that originated with an anonymous telephone tip and resulting traffic stop, for example, Mr. Scalia attacked his fellow conservative justices for their faulty judgment, dubbing their majority opinion "a freedom-destroying cocktail" that benefited the cops at the expense of the citizenry.
Likewise, in 1989, Mr. Scalia joined liberal justice William Brennan's famous majority opinion holding that the First Amendment right to freedom of speech protected the right to burn the U.S. flag as an act of political protest. Many American conservatives were outraged by that ruling, but Mr. Scalia stuck to his principles.
The Supreme Court ruling that Mr. Scalia himself was most proud of was his 2008 majority opinion in the landmark gun control case 'District of Columbia v. Heller.' In that decision, the Supreme Court struck down a handgun ban on the grounds that it violated Constitution's individual right to keep and bear arms. Mr. Scalia's decision in Heller practically revolutionized the U.S. debate over gun rights, placing a constitutional roadblock in the way of all government officials who seek to restrict the sale and possession of handguns and other firearms.
Mr. Scalia's death has already shaken the U.S. political system to its core. Within hours of the news, President Barack Obama took to the airwaves, vowing "to nominate a successor in due time." With less than one year left in office, Mr. Obama desperately wants the opportunity to replace Mr. Scalia with a liberal jurist, thereby tipping the Court's overall balance from right to left.
But Mr. Obama's Republican opponents have plans of their own. Senator Mitch McConnell of Kentucky, the powerful Republican Majority Leader of the U.S. Senate, has already vowed to block any judicial nominee Mr. Obama puts forward. "This vacancy should not be filled until we have a new president," Mr. McConnell declared.
Unfortunately for Mr. Obama, if the Senate Republicans maintain a united front, they have the votes to make good on Mr. McConnell's threat. Under the U.S. Constitution, all presidential appointments to high office must receive the "advice and consent" of the Senate, meaning the Senate must vote to confirm. If the Senate votes no, or simply delays until the clock runs out, the president's pick does not get the job.
The Republican strategy in the coming months will be to paint Mr. Obama as a "lame duck" who has no business making lifetime judicial appointments during his final months in office. Let the people decide both the future of the presidency and the future of the Supreme Court in the coming national election. The Democrats will respond by saying Mr. Obama has already won two elections and it is therefore his presidential prerogative to pack the Supreme Court. To give some historical perspective on this confrontation, 1888 was the last time a Republican Senate confirmed a Democratic Supreme Court nominee during an election year.
It's somehow fitting that Mr. Scalia's death has kick-started this legal and political maelstrom. He was never one to shy away from a fight and I suspect he would have been quietly pleased to find himself at the center of a constitutional firestorm of this magnitude.
Whether you liked him or not, there is no question that Mr. Scalia was a legal giant who shaped the course of U.S. law.