His father, Antonin Scalia, was a Supreme Court giant for 30 years — ending only with his death in 2016 — so it’s hardly surprising that Christopher Scalia has a keen perspective on the role of the Supreme Court.
And given the huge political battle that surrounded the confirmation of now-Supreme Court Justice Brett Kavanaugh, many have wondered what the late Justice Scalia would have thought of what the process has become.
Because he’s been asked about it multiple times, Christopher Scali has written a commentary piece for Fox News addressing what his father would have had to say about it all. Already the author of a book about his father and his father’s wisdom, Scalia has an insight few can claim.
While some have been shocked over “the heated debate, political maneuvers, protests, last-minute delays and uncorroborated allegations of sexual misconduct” witnessed throughout the Kavanaugh nomination, Scalia wrote that his father would not have been. The reason is that the late justice “long ago warned Americans about the excessive intrusion of politics into the judicial appointment process.”
And Justice Scalia pointed “a large share of the blame” on “the justices themselves,” Christopher Scalia wrote. He explained that his father saw an imbalance between the three branches of government.
“My father believed that a major reason the judicial confirmation process has become so heated is that federal judges too often exceed the role envisioned by our nation’s founders and usurp the power of elected representatives,” he wrote.
Referencing quotes from Alexander Hamilton, Christoper explained the reasoning behind the belief.
Hamilton saw the judiciary branch as no threat to the people’s liberty because it was inherently the weakest branch of government. However, he also qualified that by saying it was only true if the judiciary remained very separate and distinct from the other two branches.
That was how the Supreme Court initially functioned, but this the changed over time. Christopher Scalia then wrote about how the problems began.
“My father explained that for most of American history, Supreme Court justices recognized that the meaning of legal texts – including the Constitution – did not change. Judges understood that their job was to interpret that original meaning – referring to tradition, history, and precedent when necessary.”
He added that “When dealing with laws and statutes, this approach is known as textualism; in reference to the Constitution, it is called originalism. But over the course of 20th century, judges began to think of the Constitution as a ‘living document’ whose meaning changed with the times.”
The “living document” argument is one many may recognize. It is frequently used by leftists to justify making drastic, and liberty-threatening, changes and “interpretations.” Then Christopher Scalia dropped a truth-bomb on that argument.
” … (T)he Constitution establishes democratic processes, both in the states and in Congress, with the flexibility necessary to adapt to changing circumstances. This can happen through new laws and through constitutional amendments.”
So how does all of this put a heaping chunk of the blame on justices for the Kavanaugh confirmation battle? Christopher Scalia explained that the “living document” mindset resulted in the Constitution being interpreted by “unelected judges with lifetime appointments – men and women who are intentionally protected from the will of voters at the ballot box.”
He added that “As a result, many debates and compromises that should have occurred in the political realm have been short-circuited by the judicial branch for decades.” And some leftist heads may explode with “the most notorious example” of what he is referring to, but it is one many — including lawyer and syndicated radio show host Mark Levin — have made: Roe v. Wade.
Although the 1973 ruling that legalized abortion nationally is rife with problems, in this context, the problem is, according to Christopher Scalia that, “The justices believed they were settling a contentious national issue. But they were doing nothing of the sort; they were inflaming it.”
“When Americans realized that lower court judges and Supreme Court justices were exercising their will rather than just their judgement, judicial nominations became much more heated,” he wrote.
He quoted his father’s words: “A freedom-loving people respectful of the rule of law may be expected to let lawyers decide what a constitutional text means; but they cannot be expected to let lawyers decide what a Constitution ought to say.”
The late justice also famously said of the matter, “no court can expect to remain immune from severe political pressure … if it assumes the role of inventing solutions for social problems instead of merely applying those solutions prescribed in democratically adopted statutory or constitutional text.”
Antonin Scalia made clear while he was alive the importance of justices being focused on law and the Constitution, rather than activism from the bench.
While blame is being directed at this group and that, and some are actually attempting to justify what occurred, now we know, according to Scalia’s son and his own words, what the late Supreme Court justice would have thought about the confirmation process Kavanaugh was subjected to recently. And a good case is made for his point.
What Americans can do to help right the wrongs is to help ensure that law- and Constitution-based justices are put into place and those who aren’t being kept out. That can only be accomplished at the ballot box, where presidents and senators are elected who each play a role in determining Supreme Court appointments.
Democrats are the party of the “living document” idea about the Constitution that has done so much harm to the country and the Supreme Court itself. Keeping Democrats out of office through electoral process is the best way to clean up the judiciary branch.
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