For most Americans Justice Scalia was an unknown which says much more about the publics lack of reverence for the Constitution than it says about his advocacy. He remains a permanent fixture in the matrix of appropriate juris prudence where the ideal is that despite one’s personal agenda you side with the law and not bend it to suit a temporary indulgence or do you re-write it by unilateral dictate. He recently wrote; “The strikingly unrepresentative character of the body voting on today’s …would be irrelevant if they were functioning as judges”. Later, in his dissenting view on the issue of Gay Marriage, he wrote “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation; no social transformation without representation.”
The point most worthy of note is even Justice Scalia, a member of the Court, was suspicious of the prevailing threat that the Court was not articulating the Law as the Constitution prescribed, but had evolved into an elitist dispensary of personal impulse and not, as intended, a construct where the contest was arbitrated by an agreed-to construct; the U.S. Constitution. He understood the core and its source and that it was the Constitution that was the standard from which rules were defined as The Rules; you follow them or you proceed at your own peril. You want to change a Rule then you amend the Constitution, but never permit a Court to bend to spontaneous or temporal impulse. He had contempt for the process that sought to diminish the judicial process writing that “The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that (even) the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners.”
How situationally fluid can you get, but then again the ABA is itself an incubator of temporal impulse and so, without rules, who then stands, if not the Court, for those who have no such influence? Are they any less worthy of Constitutional reverence? To understand the importance and purpose of the Supreme Court is to then understand how dangerous the politicizing of the Court has become and the affect it has had on the National order specifically where social, political and economic issues are concerned; you needn’t look very far.
How many shades of RED do you tolerate until “stop” is no longer distinguished by way of a Traffic Signal? To be sure, the resulting collision is no less deadly. So the question then becomes what comes of Justice Scalia’s passing? Clearly if the politicizing of replacements continues to favor politically agendized-impulse then the Constitution’s prescribed order becomes meaningless; given the behavior of the Executive and Legislative Branches it may be that we are past the point of no return. Would Scalia challenge Senate Majority Leader McConnell’s position to block the Presidents right to seat a Supreme Court Justice? Publically he would likely say that it is not the purview of the Court to comment. If it came before the Court he would simply refer to the Article II, Section 2, Clause 2 of the U.S. Constitution commonly known as the “Appointment Clause” and likely add a comment or two over how the Court has become hopelessly contaminated by the unholy infusion of personal bias, where decisions are rendered based on personal allegiance to temporal cause and tethered to political-advantage with little to no reverence for the document that defined its form and its function.
To the defense of the whole of an entire people and not merely the few who appear before the “highly unrepresentative panel of nine.” Privately, given the current state of the Court and the Political climate of Agendized Opportunism, he would likely retire to his study and weep. He admired the perfection of the U.S. Constitution and the underlying rights its design was intended to protect and preserve and it is seen in the great care he lent to each decision. Balance is necessary to overcome extremes. We must insist on it in our Government so that our Individual Freedoms and Liberties are assured an impenetrable defense.
Curtis C. Greco, Founder