The sudden and untimely death of Justice Antonin Scalia on February 13 is a reminder of two things — first, how much he himself meant to the rule of law and the integrity of our Constitution; and second, how very much is at stake in this year’s presidential election. Justice Scalia was a champion of textualism and originalism in the reading of both statutes and the Constitution, and he was the reliable anchor of the Supreme Court’s originalist wing in an era of deep division and conflict with the “living Constitution” approach to jurisprudence that holds down the other wing of the Court. His passing leaves the contending sides slightly less evenly matched, if anything maximizing the influence of Justice Anthony Kennedy, the notorious swing vote who alternates between constitutional constraint and progressive abandon.
Scalia was already an important figure in conservative legal circles when he was appointed by President Reagan in 1986 — present at the creation of the Federalist Society as a professor at the University of Chicago, and for four years an accomplished judge of the D.C. Circuit Court of Appeals. His nomination to the Supreme Court was confirmed 98–0, an outcome that would have been unlikely if he had not been succeeding William Rehnquist (elevated to chief justice at the time), with Republicans in control of the Senate. (Witness the furor a year later when Reagan nominated Robert Bork to succeed the swing-vote Lewis Powell, with Democrats in the majority.)
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