Conspiracies, conservatism and the US Constitution: how a Supreme Court Judge’s legacy will shape the future of America

 

There are three words beginning with ‘C’ which come to mind when contemplating the significance of Supreme Court Judge Antonin Scalia’s death on the 13th of February: Conspiracy, Conservatism, and the US Constitution.

Scalia’s death has a sincere gravity in respect of President Obama’s ability to reshape the ideological positioning of the Supreme Court for years to come. It also carries implications for the 2016 Presidential and Congressional Elections.

This article seeks to address the issues that have henceforth been raised surrounding the death of the Supreme Court Justice, reflecting first on his conservative ‘Originalist’ legacy, before turning to the reaction of Republicans and Democrats, and finishing with the somewhat ridiculous conspiracy theories that have inevitably risen surrounding his death.

Antonin Scalia was appointed in 1986 to the Supreme Court by Ronald Reagan following the retirement of Chief Justice Warren Burger and subsequent elevation of William Rehnquist to the Chief Justiceship. Before his appointment, Scalia had served as a Judge on the United States Court of Appeals for the District of Columbia Circuit, having also been appointed to that position by Reagan. Scalia was well known to agree with Reagan’s New Right agenda, and thus his nomination was not surprising given that his ideological beliefs were rooted in conservative values. Scalia had a profound impact on the status and reputation of the Court, believing that it should be above and separate from partisan politics; however, his consistent conservative rulings might imply otherwise.

Scalia also strongly believed in interpreting the US Constitution literally, with Originalism coming to the fore since his appointment to the Court. Originalist theory argues that the US Constitution ought to be interpreted by judges in respect of the original intentions of the Founding Fathers and ‘public meaning’ it held when it was first written. This method of interpretation led to the adoption of a narrow-minded framing of the Constitution, essentially paving the way towards limiting the influence of individual standards.

Scalia’s impact as a highly conservative member of the Court — possibly only second in conservative values to Clarence Thomas — has tipped the balance in key Court decisions, especially ones of constitutional significance. Scalia played a central role in the Court’s ruling in Bush v. Gore (2000) which ruled that the Electoral College was the determinant of the winner of the presidential election, not the popular vote, as the College was the institution designed by the Fathers to elect the president indirectly, thus handing the presidency to Bush and calling for the termination of recounts in Florida.

On social issues, Scalia’s conservatism pervaded his rulings: he was strictly opposed to abortion, and called on his fellow justices many times to strike down the ruling in Roe v. Wade (1974) as unconstitutional. In 2007, the Supreme Court upheld the Partial Birth Abortion Ban Act of 2003, which had been declared to be unconstitutional by a Judge on the US Court of Appeals. However, the Supreme Court overturned this decision and declared the Act to be constitutional, thus marking a clear jurisprudence of the Court in favour of restrictive abortion rights.

Scalia, being a firm believer in interpreting the Constitution in its original form, strongly supported gun rights and the Second Amendment. Thus in 2008, in District of Columbia v. Heller (2008), Scalia wrote the majority opinion that outlawed Washington DC’s total ban on handguns. The Supreme Court Judge was also known to favour corporate and elite interests, as well as those against the practice of affirmative action.

The most prolific and publicly decried ruling that has the largest impact on the upcoming election, was the ruling in Citizens United v. Federal Election Commission (2010) which transformed the landscape of campaign finance. The Court ruled that interest groups and corporations had the same right to ‘Freedom of Speech’ as did individuals, thus paving the way for the creation of Super PACS — organisations with the right to unlimited financial expenditure in the aim of defeating or electing a candidate to political office.

Scalia’s death has since provoked widespread tension between the polarised Republicans and Democrats. The Republicans are insisting that the next president ought to fill the vacancy once in office, whilst the Democrats are decrying this reaction to be a strategic partisan attempt to shape the Court and declaring that President Obama has the constitutional right to appoint a Supreme Court Justice in his final term.

The Democrats are right. Obama has every right to appoint the next Supreme Court Justice, as laid out in the Constitution under Article II, Section 2 of the US Constitution which reads: ‘… and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judge of the Supreme Court, and all other Officers of the United States …’. Indeed, he does require the Senate to ratify his choice of nominee, however, the Republican-controlled Senate has declared that they will delay any nominee Obama puts forward until the end of his final year.

This approach simply reflects the extent to which partisanship in Congress has resulted in an essentially unworkable system of divided government. Yet, the Constitution does also say that: ‘The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of the next Session’. This suggests that Obama may be able to temporarily appoint a nominee, bypassing the Senate initially, if the nominee were to simply ‘languish’ in the Senate without final action.

The presidential candidates on both sides have reacted to the vacancy following Scalia’s death with sharp opposition. Donald Trump called on the Republican Senate to ‘delay, delay, delay’ any appointment that Barack Obama might make, whilst Ted Cruz — who actually sits on the Senate’s Judiciary Committee — tweeted ‘Justice Scalia was an American Hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement’. On the other side of the spectrum, Hillary Clinton denounced the sentiments of the Republicans, saying that Republicans would be ‘ignoring the Constitution’ and decried Scalia’s legacy of Originalism arguing it to be an attempt to delay Obama’s appointment of a replacement. Clinton’s message is the most powerful: it highlights the paradox between the Republicans’ reverence for Originalism and conservative principles with their current insistence that the Senate ought to delay any appointment that the President makes to the Supreme Court — something that is fully within his constitutional rights.

What is even more ridiculous than the reaction from the Republicans is the bizarre conspiracy theories surrounding Scalia’s death. Scalia was found dead at a hunting ranch whilst on a vacation with friends, in an area of Texas known as the ‘Big Bend’ region, a very remote area of Texas which is close to the Mexican border. Officials in the county took quite a while to find the Justice of Peace, and eventually when they did, Presidio County Judge Cinderela Guevera, ruled that from the information she received regarding Scalia’s condition, he had died of natural causes; and this was without even seeing the body or requesting an autopsy. John Poindexter, a businessman who owns the ranch that Scalia was found dead on and was invited to, said that Scalia was found with a ‘pillow over his head’ which has since fuelled conspiracy theories abound that Scalia was murdered. Furthermore, queries about Poindexter himself have been raised, since some argue that he is friends with Obama and has in the past made donations to the Democratic Party. However, these attempts to argue that Scalia was murdered are essentially fruitless until real pieces of evidence suggesting foul play emerge; until then, these conspiracy hypotheses merely represent a ridiculous, politically-motivated attempt to pin Scalia’s death on the incumbent President.

To conclude, Scalia’s death leaves in its wake a series of tremors leading up to the earthquake of the November election. There is no doubt that his death will have an impact on the presidential primaries and the election, not to mention the congressional elections alike. Candidates seeking election next November put themselves in a precarious position by coming out too forcefully on one side of the argument — just as Republican senatorial candidates Kelly Ayotte (N.H.), Ron Johnson (Wis) and Rob Portman (Ohio) have done in calling for the Senate to disregard any nominee Obama puts forward. Yet whilst Scalia’s death may for now have a relatively short-term impact on the 2016 race, his legacy of Originalism will have a long-term impact on the Supreme Court’s interpretation of the Constitution for years, or even decades, to come.