What should we do about another Supreme Court Justice? This question is one that has deep roots in our judicial system. With the passing of Justice Antonin Scalia we are once again faced with this question.
Usually we have this discussion in a more general sense during presidential elections. We sometimes wander into the discussion about what this presidential candidate or that candidate would be expected to do as far as appointments to the Supreme Court. Article II Section 2 of the Constitution states that the President “. . .shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .”
We've all heard comments about how our elected officials take the oath to uphold the Constitution. Often we are frustrated because it doesn't seem many of these officials are doing that.
That's where we get back to the Supreme Court. While we can all read the Constitution, our founding fathers gave the job of interpreting the Constitution to the Supreme Court. This structure was designed to help serve as a check against one of the branches running roughshod over another. However, some of our founding fathers recognized that giving the power to interpret the Constitution to one branch could eventually make that branch become the most powerful of the three branches. Therefore, the power to appoint these individuals can have a significant long term impact on our Republic especially since the Justices of the Supreme Court are the only branch that do not stand for election. How they view the Constitution is paramount to how they direct the other two branches.
Justice Scalia believed that the words of the Constitution were not malleable. His philosophy was labeled “originalist” or “textualist” and when he spoke at the University of Wyoming's Law School he explained the reason for his philosophy. Appointed to the Court by President Reagan, he perfected his philosophy that the words of the Constitution should be interpreted based on what the founding fathers thought at the time. He argued strongly against the Constitution being a “living document” which would mean major tenants could be explained away by changing the meaning of the words to something different than what the founding fathers intended. His argument presented at UW was that by changing the words in the Constitution to mean something different than they originally did, the Constitution became a meaningless document which contained no constraints on government or one branch of government over another.
His philosophy was also punctuated by a sharp wit and an even sharper pen when he would write strong dissents against some of his fellow Justices. His opinions were also noted for creative use of words. One of my favorite creative words used was the term “jiggery-pokery” which he used in King v Burwell. I'd bet that's one phrase our founding fathers never used, but it is useful in describing some of the rulings that have come out of the Court.
Perhaps the most interesting point made by Justice Scalia was his observation when the Court moved into the realm that the Constitution was a living document. Justice Scalia pointed out this created the situation that every Supreme Court nomination was a mini Constitutional Convention. Prior to the Court moving into recreating the Constitution, Supreme Court judicial nominees were routinely approved by the Senate on majority votes with little discussion.
Perhaps that is why we have the current situation when it comes to Supreme Court nominees and the battles they've created by adding their own twist to what the Constitutional words mean.
By Ken Hamilton, Wyoming Farm Bureau Federation Executive Vice President