Antonin Scalia is dead. The conservative majority on the Supreme Court is broken, at least for the moment—a rare opportunity for the United States, and an even a bigger opportunity for Hillary Clinton.
Clinton has been painted by opponents, both among Republicans and those in her own party, as a stage-managed politician without a moral or philosophical center, a woman whose only burning passion is for her own election. Most significantly, she is perceived as someone who cannot be trusted to represent the interests of those who would vote for her.
Here is her chance to change all that.
Regardless of the accolades that have been and will continue to be foisted on Scalia by Democrats in Washington, few on the left will mourn the passing of the man who came to epitomize the heartless, soulless conservatism that would continue to see homosexuality as a sin and deny a condemned prisoner a new trial, even when evidence of his innocence was uncovered after his or her appeals had been exhausted.
In praising Scalia’s brilliant legal mind, no politician seems willing to assert that his beloved originalism, the objective rather than subjective reading of Constitutional text, was a theory sprung more from the justice’s doctrinaire Catholicism than from jurisprudence, and that it is utterly inapplicable to a document written by the Founders intentionally to be vague. The last thing James Madison and his fellow delegates in Philadelphia wanted was the “Dead Constitution” that Justice Scalia was so adamant in promoting. One need only read the Constitutional and Ratifying debates to recognize that passages such as Article I, Section 8, which grants Congress the power to “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof,” were inserted for the very purpose of allowing subsequent generations to interpret the Constitution to meet their own demands. (To say nothing of the impossibility of coming up with the one and only definition of “necessary and proper.”)
In fact, what the justice really meant was that he and his like-minded colleagues could extract objective meaning from subjective exposition. It is apparent from reading Scalia’s fervent, passionate, bitter, acerbic dissents, that here was a man convinced of his own rectitude, unwilling to countenance the possibility that he was wrong or had anything left to learn. This was the man who denounced his colleagues in Lawrence v. Texas as being part of a “law-profession culture that has largely signed on to the so-called homosexual agenda,” without at all realizing that he had an agenda of his own. “This effectively decrees the end of all morals legislation,” he added, without wondering whether morals legislation had anything to do with the American Constitution. In 2006, in Kansas v. Marsh, he voted to uphold a death penalty law that would execute prisoners who might later be proven innocent, and wrote that his opponents did “not discuss a single case—not one—in which it is clear that a person was executed for a crime he did not commit.” When in the subsequent decade, many of those convicted of serious and capital crimes were in fact exonerated, the justice never admitted that perhaps he had been hasty.
People often feel helpless when it comes to the Supreme Court, nine unelected legal Brahmins serving for life, deciding without recourse what the law should be. This is a far cry from what the Founders envisioned. In June, 1788, Alexander Hamilton, in an essay published in the New York Independent Journal, which would become known as Federalist 78, extolled the national judiciary as the ultimate guardian of the rights of the common citizen, “requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” In other words, Hamilton saw the court system as protecting the rights of the very people in contemporary society—gay Americans, condemned prisoners—whom Scalia asserted didn’t have any. Hamilton envisioned a Supreme Court in which, if an appeal was brought by a citizen, the justices might supply protection or relief unique in history. If you want originalism, there it is.
While the nation has seen other protracted battles over Court succession—it took Ulysses Grant four tries before he could replace Chief Justice Salmon P. Chase with Morrison R. Waite—it is unprecedented since the earliest days of the republic to have such a pivotal, political, and controversial justice leave the bench in the throes of an acrimonious presidential race. Republican senators, showing characteristic deference to the Constitutional principles they so venerate, have already stated unequivocally that will not confirm anyone whom President Barack Obama nominates.
There is no doubt that during the campaign, Mrs. Clinton intended to stress the possibility of one or more Supreme Court seats becoming vacant. But now a seat is vacant, and will probably remain so until next January. If Bernie Sanders and the abomination that is Donald Trump have proven anything, it is that many in the electorate are sick of hearing political bromides and are desperate for straight talk, for someone who will abandon verbiage and be willing to say, bluntly, passionately, and even crudely, what ordinary people are thinking.
Hillary Clinton must do the same about the passing of Scalia, the importance of remaking the Supreme Court, and most crucially how to interpret the American Constitution—that she is the candidate to bring its true original meaning back to the Court.