We are reeling from the death Saturday of Justice Antonin Scalia, who may have been, as the Wall Street Journal puts it, "more consequential than any Justice whose jurisprudence so rarely carried a majority of the Court."
Michael McConnell notes in another piece in today's Wall Street Journal:
Antonin Scalia, who died Saturday at age 79, was the most influential Supreme Court justice of the past 30 years. Not because he had the votes. He was influential because he had a clear, consistent, persuasive idea of how to interpret the Constitution: It means what it says; it means what those who enacted it meant to enact.
Taking note of Scalia's many dissenting opinions, George Will's tribute captures the man and the jurist:
Antonin Scalia, who combined a zest for intellectual combat with a vast talent for friendship, was a Roman candle of sparkling jurisprudential theories leavened by acerbic witticisms.
The serrated edges of his most passionate dissents sometimes strained the court’s comity and occasionally limited his ability to proclaim what the late Justice William Brennan called the most important word in the Court’s lexicon: “Five.”
Scalia was, however, one of the most formidable thinkers among the 112 justices who have served on the Court, and he often dissented in the hope of shaping a future replete with majorities steeped in principles he honed while in the minority.
Those principles include textualism and originalism: A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them. These principles of judicial modesty were embraced by a generation of conservatives who recoiled from what they considered the unprincipled creation of rights by results-oriented Supreme Court justices and other jurists pursuing their preferred policy outcomes.
Scalia's death sets up a vicious battle for the Supreme Court and given the ways in which Obama nominees already on the Court interpret the Constitution, it is not an exaggeration to say that this is also a battle for the Constitution. Edward Whelan of Ethics and Public Policy goes so far as to say that Scalia's death could cost Americans our Constitution.
Adam White writing in the Weekly Standard, explains why Article II, section 2 of the Constitution does not require Congress to vote on President Obama's nominee; whoever he or she turns out to be, we know that it will be a body blow to the Constitution. Whites notes that of 160 nominations to the Supreme Court, the Senate has confirmed only 124. The majority of the failed nominations did not receive an up or down bote.
This is also a test of whether Congress, repeatedly bypassed by President Obama, can restore some of its own prerogatives. It is also a test of whether after all the Republican majority means something.