Mises Wire

Scalia’s Fate

With the death of Supreme Court Justice Antonin Scalia, the various 2016 presidential campaigns have been thrown a serious curve ball. Should candidates cater to voters directly, by suggesting potential nominees for the Court? Should they insist that a lame-duck president-- albeit one with nearly a full year in office remaining-- refrain from nominating anyone? Should they demand that Obama push a nominee forward, and force Senate Republicans into a political fight if they refuse to hold nomination hearings? Or should they call for a “moderate” nominee to be appointed, one that neither excites nor satisfies any faction? These are thorny questions. But putting aside our Spoonerite view on all things constitutional for a moment,  we wager that any candidate who suggests the esteemed Judge Andrew Napolitano for the vacancy will see a spike in poll numbers! 

Nothing polarizes Americans like so-called social issues, and the Supreme Court has become the de facto Decider in Chief. I say de facto because there is no legal authority for centralized decision-making by the Supreme Court, either in common law doctrine or the Constitution. And not surprisingly, this top-down, one-size-fits-all approach to social matters has led to depressing and divisive results. By effectively federalizing the rules for highly contentious issues, issues that are far better governed by custom, religion, and social mores, the Court has played a leading role in pitting Americans against each other. It has permitted the high-stakes jurisprudential victors to spike the ball. Hence the term “settled law” has become a euphemism for “shut up.”   

Yet it need not be so. Culture wars should not be legal wars. As Ron Paul explained time and again during his years in Congress, the public remains deeply misinformed about several key points:   

  • The concept of judicial review is a fabrication by the Court, with no basis in Article III. 
  • Constitutional jurisprudence is not constitutional law.
  • The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.
  • Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.

Without this understanding, the public was never going to accept Scalia’s originalism. Once the Court’s role as the lever for social progress was established, Scalia’s fate was sealed: he must be demonized as an impediment. 


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