The most important decision the next President of the United States will make, so many feel, is the appointment of the next, the ninth Supreme Court Justice of the United States of America.
He or she will determine how we the people live, what our Constitution means, and what our laws will be more than any other justice. Donald John Trump or Hillary Rodham Clinton will make that choice.
There are now eight justices of the Supreme Court at work, four of which are committedly liberal, voting in lockstep with predictable legal outcomes. Those four justices, Ginsburg, Breyer, Sotomayor and Kagan, have voted the same and with each other consistently more than 90% in cases decided by the court.
Conservative justices are Alito, Thomas and not six months ago, Scalia with Chief Justice John Roberts essentially voting conservative 70% of the time and Justice Kennedy somewhat the same, but both unpredictable in some cases in their thinking and voting patterns. Antonin Scalia, now deceased, was virtually always predictable, in fact the leader of the conservative side of the Supreme Court and Roberts notwithstanding, the real legal leader of the entire United States Supreme Court.
Antonin Scalia was perhaps the most profound and influential Supreme Court Justice in modern times and perhaps ever. He was brilliant, a deep legal scholar, a man possessed with warmth, cheer, grace and wit, liked and admired by so many, a man who had a profound understanding of the law and the Constitution. That is why so many feel he is indeed irreplaceable.
Justice Antonin Scalia had strong opinions about the PRINCIPLES OF JURISPRUDENCE which should govern the Supreme Court Justices and in fact all judges. Scalia believed that the law, whether statutes or the Constitution itself, must be applied according to its TEXT. Judges, he believed, should never apply the law based on what is good policy or what they think Congress may have intended but not overtly expressed with regard to language in the legislation as passed. In short, Scalia was a literalist, taking words as written and for what they meant without adding to or subtracting from, especially that precious document our Constitution. The law should never be politicized nor should Constitution or statutes be used for the benefit of politicians, parties or special interests. The actual text of the Constitution prevailed. No judge had the right to add to or subtract from.
The second principle of jurisprudence in which Justice Antonin Scalia firmly believed was that the words of the law and the Constitution should be understood as they were understood by the people when the law was enacted. If for example (the law of contracts), a contract was made between two people, any interpretation of that contract should be made as the words were written and as the law was at the time the bargain was struck. A court should never determine what those words might mean years down the road for, Scalia firmly believed, the meanings of words change over time and become unattached from any objective measure. In other words, what may be legal one day may be illegal the next without any textual changes in the law. The meaning of the law may evolve in some organic way, as it surely does in this day and age but for Scalia, the meaning of the law and the Constitution is fixed in time by the meaning ascribed to those words at the time they were authored. Scalia called that ORIGINALISM. Interpret legal words as they were enacted in accordance with the actual meaning those words had at that time. Consequently, those two principles, textualism and originalism were absolutely critical for the right thinking of any justice or judge.
Both textualism and originalism are deeply rooted and find their authenticity in a third characteristic of Justice Scalia’s jurisprudence which was:
AN UNWAVERING RESPECT FOR THE IDEA OF POPULAR GOVERNMENT
Our Constitution and any laws which may result therefrom federal, state or local receive their legitimacy and authenticity from:
WE THE PEOPLE
The Constitution was not, for Scalia, an autonomously evolving document that spins out new rights and duties to which the people have not given their consent. Judges and justices can not in their infinite wisdom divine new rights not overtly expressed in the Constitution, such as the right of homosexuals to marriage, for there is no justification in the Constitution for that. Such a critical issue is for the people to decide, through popular government thought Scalia. If the people have not given their consent, judges, especially judges can not make the law or add to it. Rather than discovering new rights in the Constitution, organically evolving as the times might allow, especially with regard to the Constitution, judges and justices should respect the Constitutional prerogative, THE RIGHT of the people to pass laws through their representative legislatures as they the people think are right and necessary and strained of course by the Constitution which of course was ratified by popular vote and consent. If the people wish new rights, then the people through their representatives should add to those rights, Constitutional Amendments in the Bill of Rights but not from the mere mind of nine justices. If judges legislate, that effectively puts an end to any Democratic response, to the rights of the people and turns America from Democracy and Republic to an oligarchy, rule by the few, namely nine justices. Judges have no right to creatively interpret the Constitution.
And yet a fourth characteristic of Justice Antonin Scalia’s principles of jurisprudence was a conviction so firmly held that the rights which were actually enumerated and expressed and guaranteed in the Constitution should be “tenaciously defended,” from the right of free speech to the rights of criminal defendants and much more. Freedom once lost, as Ronald Reagan said, is lost forever. The American people should be required to be diligent, defending, protecting those rights at all times and with all of their might. That is the duty of every citizen. We should pay heed to that Scalia admonition now more than ever!
As a fifth and final Scalia principle of jurisprudence, he firmly believed that the Constitution sought to protect freedom and liberty as this document defined it in a structure of checks and balances between branches of government and division of powers. That is especially so with the federal government which has three branches of government, really four, namely the President, the House of Representatives and the Senate combined as Congress, and of course the judicial-court system. In so many ways today, those four have become five because there is incredible power and even rogue operations of the various federal agencies which essentially legislate or define often beyond the powers granted by Congress. Our forefathers believed that their various branches of government would protect and defend their enumerated powers, check and balance, against the others to make certain there was in fact BALANCE in the enacting and implementation of all laws, including rules and regulations. In this day and age, when many think that Obama is a rogue President, legislating with his pen and his phone, whether or not Congress as authorized such powers in any specific ways. The Senate often stonewalls the House of Representatives and the House the same rather than working together. Judges can interpret and even make law (i.e. the Constitutional right to homosexual marriage), so that often the Constitutional intention of political checks and balances is done away with. Scalia believed that would be the end of Democracy, our Republic and to be sure the Rule of Law and the Constitution. The ultimate fate of the Rule of Law would be in the hands of judges executing judicial activism, inventing the law and failing to do its duty, namely to make certain that the limits on government are strictly enforced. We see clearly at work the crumbling of the balance of powers, the checks and balances between branches today more than ever in our history and we the people sooner or later will pay the price.
The new Supreme Court as it will be determined in 2017 by the appointment of the ninth justice by our new President will decide some critical issues and further expand Constitutional reach. The court will be called upon to decide laws and controversies with respect to FREEDOM OF SPEECH. That issue is a principle determined by the court’s decision in the case CITIZENS UNITED, wherein the court held that the government may not limit the amount of money spent on political campaigns whether by individuals, unions or corporations with respect to their own independent political advocacy. Spend as you will to spread the word as you believe, and without monetary limitation. That issue will come before the new court in 2017 with certainty.
The court will also be called upon to decide what is and the limits of:
In short, the Supreme Court will have the opportunity to limit or further expand the concept of free speech as unconditionally guaranteed by the First Amendment to our Constitution. We the people can be sure that the liberal justices will vote to restrict that speech, providing criminal or civil sanctions for the use of hate speech, four of them, while the other four will undoubtedly vote against any condition or abridgement to free speech whatsoever. In such a case, the ninth and the new justice will provide the determining vote, one man or one woman which may forever alter the true and plain meaning of our Constitution and the First Amendment forever. There can be no more important vote than that, no greater issue than free speech, and no greater concern for the appointment of that ninth Supreme Court Justice. Who do you want to make that decision, Trump or Clinton?
Freedom of religious conscience also hangs in the balance. The Supreme Court, when Justice Scalia was alive, in the HOBBY LOBBY case protected the right of religious employers not to fund abortions. In due course, the Supreme Court will be called upon to decide whether civil rights laws can be used to force for example a Christian photographer to use her artistic skills to celebrate a same-sex wedding. Catholic nuns, THE LITTLE SISTERS OF THE POOR have asked the court to rule that they are not required to cover contraception in their health insurance plans. The court, now split, will be called upon to make that decision and the ninth justice will decide.
Then comes the Second Amendment where there can be any number of attempts to limit or control:
THE RIGHT TO KEEP AND BEAR ARMS
The limitations on the ownership and use of firearms, guns, ARMS are proposed everywhere and sooner or later, some kind of new control may find its authenticity in a new Constitutionalism by a Supreme Court liberal in the majority. The court, liberal or conservative, will be asked to deal with the death penalty, Affirmative Action, regulation of the abortion industry and voting laws among others. In the next four years, American jurisprudence and THE PRINCIPLES OF JURISPRUDENCE can radically change, all dependent upon the nomination and confirmation of:
THE NEXT NINTH JUSTICE OF THE UNITED STATES SUPREME COURT
Perhaps the most important thing the Supreme Court with its new justice will deal with in the next four years is the matter of:
Our system of government is built around the concept of FEDERALISM. Federalism provides for a federal government with our Constitution as the supreme law of the land, but also now 50 states with their very own rights, constitutions and laws which, if not unconstitutional, are the laws of that state even if different from others. The goal of the Obama Administration has been to concentrate power in the federal government and minimize and in some cases eliminate states’ rights and laws, making states subservient to the federal government rather than co-equal as the Constitution and the founding fathers intended. Gay marriage for example was once the province of the states to determine whether legal or not. States’ rights in that regard to legislate have been eviscerated even as the court has found the new Constitutional right for gays to marry. Any of the laws of the 50 states which prevented gay marriage were automatically rendered null and void and along with it the greater consequence of the loss of state power to so control its own legal decision making. That Supreme Court decision struck a blow to federalism.
There has also been an ever-growing hostility toward the world of business, so many decisions federal and state with results anti-business including and especially states like California and New York. At the federal level, the next or ninth justice of the Supreme Court may well render decisions consistent with that trend, damaging business and our economy generally. An organic or evolving (creative) interpretation of the Constitution can well spell the restriction or even the end of so many of the precious Constitutional rights we now hold.
For those of us who wish to continue balance and the fair positioning of conservatism, the PRINCIPLES OF JURIDPRUDENCE in which Justice Antonin Scalia believed, namely:
- The right of the people to legislate
- The aggressive defense of Constitutional Rights
- The checks and balances of power between branches of government and federalism as between the federal and state governments
Must be respected and protected by the Supreme Court and especially by the appointment of the ninth justice. Otherwise, our Constitution can well become meaningless with its plain words and so many contexts and even give way to the policymaking and the current thinking of the courts liberal justices. Such new power and interpretations will radically change the way we the people live. In fact, when you vote for Trump, or when you vote for Clinton, you will in essence be voting for the appointment of that ninth justice and on the one hand a retention of the courts balance of power or the shifting of that power to:
Remember that when you vote in November.
So, my fellow Americans for whom will you vote, Trump or Clinton?
That vote is a vote for the next and ninth JUSTICE OF THE SUPREME COURT OF THE UNITED STATES!