Along with all Americans who love freedom and revere our nation’s Constitution, the NCLL mourns the sudden death this weekend of Supreme Court Justice Antonin Scalia. President Ronald Reagan appointed Justice Scalia to the court in 1986. As an “originalist” (one who believes the Constitution needs to be preserved as our Founders intended) and as a “textualist” (one who believes that courts should make rulings based on what the Constitution actually says, not what others might want it to say), “Nino,” as he was called by his many friends and admirers on both sides of America’s ideological divide, was a larger-than-life figure on the Supreme Court. Justice Scalia stood by his constitutional principles and refused to compromise, supporting his positions with his legal brilliance and indomitable but often scathing wit. His stalwart defense of America’s Constitution will be difficult, if not impossible, to replace.
Justice Scalia’s untimely death also changes the shape of the November 2016 election in profound ways. Nominating judges and justices for our federal courts is one of the most important constitutional duties of both the president (who makes judicial nominations) and the Senate (who advises and consents to those nominations). This issue now takes on greater importance in the 2016 election for both the presidency and the US Senate.
Justice Scalia provided the deciding 5-4 vote on important issues like protecting the Second Amendment, protecting religious liberty, and limiting the growth of the federal government. Even when he was on the losing side of a decision, he stood strong in his dissenting opinions against issues like abortion, government health care, and gay marriage, writing as much for future courts as for his present colleagues.
Who replaces Justice Scalia on America’s high court will have important consequences for America far into the future. Supreme Court justices generally serve for many decades beyond the term of the president who appoints them. President Obama, who has already made two liberal appointments to the court (Justices Sotomeyer and Kagan), has indicated that he intends to fulfill his constitutional duty and appoint a replacement for Justice Scalia before he leaves office. If he is able to achieve that goal, it will likely be his greatest accomplishment in permanently “transforming” America. The Senate, meanwhile, is already performing its constitutional duty by “advising” the president that it will not “consent” to a nominee that will permanently change the balance of the court but that Justice Scalia’s replacement should be left to the people who will elect a new president in the November 2016 election.
Procedurally, until Justice Scalia’s replacement is sworn in, the Supreme Court will operate with eight members, as it has often done in the past. When there is a tie vote (as there will likely be on a few issues), the decision of the lower court will stand. In some cases, this will be a good outcome for conservatives. For instance, Texas’s strong restrictions for abortion clinics will be upheld, and President Obama’s executive order increasing illegal immigration will fail. Other important cases dealing with religious liberty in regard to government health care and with the constitutionality of other executive orders will continue to hang in the balance. Generally, these issues will come back to the court when nine justices are again in place. The Senate has in the past (under both political parties) refused to hold hearings or has taken many months to confirm a presidential nominee, leaving various federal court positions vacant.
Christians need to pray that God will continue to lead and guide our nation and that we will be worthy of His grace in granting us liberty. Christians also need to get involved in the political process, especially in this important election year, which could decide whether our religious liberty will be protected in the future and whether our nation will continue to stand on its Judeo-Christian foundations, positions Justice Scalia so valiantly fought to defend.