Replacing Scalia

About a month ago, a lawyer friend texted me his thoughts about a column I had written in these pages. I had argued that the legal philosophy of textualism (most closely identified with Justices Antonin Scalia and Clarence Thomas) was a natural fit for me, having been trained intellectually to appreciate actual text and try to subjugate my own understanding and biases to same.

“I think it’s a mistake to compare legal and religious texts,” he wrote. “See, for example, the attached.”

What he sent me was a dissent Justice Scalia wrote in the case of Caperton v. Massey Coal Company. Scalia wrote: “A Talmudic maxim instructs with respect to the Scripture: ‘Turn it over, and turn it over, for all is therein.’ … Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.”

While I most assuredly did not mean, chas v’shalom, to conflate the two, I was happy my friend shared that dissent with me. It helped me better understand what kind of person Antonin Scalia was. To read that a man on the Supreme Court wrote that the Constitution, which he was tasked with interpreting and explaining, was inherently imperfect because it was not Divine, was truly a testament to his character — and it gave testimony to his values. Recognizing that helped me better appreciate how good it was for us to have him on the highest court.

In light of his recent death, it is important to remember this. President Obama has indicated that he has every intention of replacing Scalia on the court with someone more to his liking. The chance to replace the sharpest and most outspoken thorn in the left’s side on the Supreme Court with someone whose ideology is more closely aligned with the president’s first two appointees is an opportunity too big to pass up.

Republicans realize this, and are also very aware of what the consequences of allowing one such nominee onto the court would be. And so, right after Scalia’s passing became public, Senate Majority Leader Mitch McConnell (R-Ky.) let it be known that he would not allow any of the president’s nominees to move forward. The president, he said, might as well not nominate anyone for the position.

As the leader of the body tasked with confirming (or not confirming) those nominated by the president, McConnell is certainly well within his rights to do what he is doing. The president, as well, is within his rights to nominate whomever he would like — as well as to attempt to manipulate the political scene to bring about the confirmation.

He will try. And although he has prevailed in these sorts of battles in the past, I do not believe he will in this one. You see, there is just too much at stake here for the Republicans to fold. Conceding the “Scalia seat” to someone who does not adhere to a textualist’s view of the Constitution will have ramifications the likes of which we have never seen before.

These ramifications are not limited to the GOP and the conservative movement. There are real-world ramifications a replacement can have on people like you and me.

It is not news that religious liberty has been under assault in recent years. As a matter of fact, there is another case just weeks away from oral arguments at the Supreme Court which has the potential to further erode our liberties in practicing our religion.

The last time it came up before the court, Scalia was one of the justices who voted to preserve religious liberty. This time, assuming the other votes remain the same, the decision would be a 4-4 tie, meaning the lower court decision would stand. That decision allows for the government to compel religious institutions to do things despite their being against the religious teachings of these institutions.

We ought to demand that the replacement, whether an adherent of textualism or not, respect religious liberty as much as Scalia did. This is a fight we have a real stake in, and we ought not to sit back and allow it to play out as we watch from the sidelines.

Scalia wasn’t just a defender of the “idea” of religious liberty in ways that help us. His biographer relates how, when the court was deciding the case of BOE of Kiryas Joel v. Grumet, he was so upset they decided against Kiryas Joel that he declared to the other justices, “I look forward to dissent!”

In his powerful dissent, he wrote the argument that needs to be made over and over. Allowing religions to get the same benefits everyone else does is a far cry from “establishment” of said religion. Today, when the anti-religious forces seek to undermine our ability to practice our religion by making it more expensive to do so (and they use the very argument made in the decision Scalia was dissenting from to do it), we must realize who our allies really are, what this loss means to us, and the importance of replacing him with someone like-minded.