by Mitch Kokai
Senior Political Analyst, John Locke Foundation
One of the more critical decisions voters will face this fall is which presidential contender gets the opportunity to appoint the next U.S. Supreme Court justice (Antonin Scalia‘s successor). Oklahoma Attorney General Scott Pruitt places that decision in its proper context for the latest issue of Hillsdale College’s Imprimis.
… [I]t is worth reflecting on Justice Scalia’s principles of jurisprudence. One of the chief principles he championed, as a scholar and as a judge, is that the law, whether statutes or the Constitution itself, must be applied according to its text. In other words, judges should not apply the law based on what is good policy or what they suppose Congress may have intended (but did not express) in passing legislation.
In addition, Justice Scalia believed that the words of the law should be understood as they were understood by the people when the law was enacted. For example, if you strike a bargain with someone, and later there is a dispute about that bargain, how do you interpret the words of your contract? Do you look to what the words of the contract meant at the time you agreed to them? Or do you look to what those words mean ten or 50 years after the fact? There are some who believe that the meanings of words change over time, untethered from any objective measure. Thus what is legal one day may be illegal the next without any textual changes to the law. Justice Scalia rejected this notion. He held fast to the idea that the meaning of laws is fixed by the meaning ascribed to their words at the time they were enacted. …
… The next Supreme Court justice will not only decide the outcome in pending cases, he or she will also influence the type of cases that make it to the Court in the first place. Businesses are less likely to challenge exorbitant or unfair rulings against them knowing there is a majority of justices hostile to their interests. Conservatives will be less likely to put their time and resources into defending the Constitution if they know the Court won’t enforce it. Meanwhile, liberal groups will be emboldened to bring cases that attempt to roll back First Amendment and Second Amendment freedoms, among others. They will also bring cases attempting to establish new “rights”—to government welfare payments, to free attorneys in civil cases, to increased funding for public schools, etc.—as well as things like a prohibition on racial disparities in criminal justice outcomes, an exception to the First Amendment for so-called “hate speech,” and a prohibition on sex-segregated restrooms.
The appointment of the next Supreme Court justice could be the most legally significant event for our country in a generation. If the next justice is in the mold of Justices Ginsburg or Sotomayor, the rulings of the Court will shift dramatically to the left. If the next justice shares the principles and philosophy of Justice Scalia, the ideologically balanced Court that we have grown accustomed to in the last quarter century will likely remain.