Scalia is perhaps best known as a proponent, perhaps even the forefather, of constitutional originalism, an interpretative methodology that sought to ground Constitutional interpretation in an understanding of the “original intent” of the authors of the Constitution. With this critically important appointment at hand, it is worth considering one of Scalia’s most important legacies during his court tenure and its limitations.
More importantly, activists and advocates desiring a more inclusive constitutional reading would be in a position to pivot away from a defensive posture - hoping merely to preserve and defend hard won gains -toward a more proactive stance, able to develop and advance the law to expand the frontiers of constitutional belonging and equality. In the last 10 years alone, the conservative court has opened the floodgates to corporate campaign contributions in the infamous Citizens United case, struck down provisions of the critical Voting Rights Act, and curtailed both voluntarily K-12 integration plans and affirmative action in higher education.Ī Democratic appointee could hold the power to revisit, if not reverse, these decisions. If President Obama or a new Democratic president, however, were to nominate Scalia’s replacement, then the court would tip in a new direction that would potentially touch every major issue of our time.
If there is a Republican presidential win this November, a Republican appointee would cement the court’s current right wing configuration, especially when taking into account that the court’s eldest member is Ruth Bader Ginsburg, a Democratic nominee. For more than a generation, our highest court has been firmly controlled by Republican appointees, with many seminal cases decided by the court’s most moderate Republican appointee, a baton handed off between Lewis Powell to Sandra Day O’Connor to Anthony Kennedy, the so-called “swing justice.”
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