For better or worse, Justice Scalia changed America

In many ways, Americans live in a legal environment that Justice Antonin Scalia created. In his nearly 30 years on the U.S. Supreme Court, Scalia, who died Saturday at 79, redefined the way lower courts interpret the U.S. Constitution. His influence on today’s America is profound.

A president is elected for four years, but his court nominees can serve 10 times that long. It is one of the most solemn duties the Constitution gives to the president. That Senate Republicans don’t want to have the succession debate right now is telling. They’re afraid of where it might lead, because they know from Scalia’s legacy how profoundly a single justice can shape the American political landscape.

In many ways, Scalia’s death crystallizes the issues facing voters in the November election. Is this an America where abortions should be harder to obtain? Is it an America where it should be harder to vote? Where decades of federal oversight over civil rights violations should be dismissed? Where people who don’t have state-issued photo identification should be turned away from the polls? Where moneyed interests can drown out political discourse? Where the mandate to purchase health care is similar to a mandate to purchase broccoli? Where anyone has the individual right to own fearsome weapons?

Scalia thought so.

He thought that state governments were closer to “the People” and thus important decisions — about the environment, voter rights, a woman’s right to choose, personal morality and more — were reserved for the states, as the 10th Amendment says. The “due process” clause of the 14th amendment and the privacy implications of the Ninth Amendment did not meet his test of “constitutional originalism” and “textualism.”

Scalia insisted that the Constitution was not a living document, to be defined by judges in light of changing cultural and social norms. No, he once said, “It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”

The way that’s worked out, particularly in the court of Chief Justice John Roberts, is the entrenchment of corporate power. State governments have long been corporate subsidiaries, with legislators who are easily swayed by special interests. “The People” to whom Scalia deferred are in reality mostly corporate people. The unions that used to provide a counterweight have seen their power dissipated, in part of because of laws Scalia helped interpret as Roberts’ intellectual anchor.

These are the issues at stake in the fall election. This is why the question of who succeeds Scalia is so important. This is why the debate over a judicial nominee’s vision of America and the role of law is so important.

Because the stakes are so high, President Barack Obama should proceed with all deliberate speed. Let the debate begin.

Reprinted from the St. Louis Post Dispatch

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