What Would Scalia Do? – The Future of Constitutional Jurisprudence at the Supreme Court | American Center for Law and Justice
  Search  |  Login  |  Register

ACLJ Profile Completion

Verified

What Would Justice Scalia Do?

By Carly F. Gammill1479846632345

Two weeks ago, most conservatives were bracing for a new era at the Supreme Court, one in which—for the first time since 1971—a majority of the Court would be comprised of liberal justices. With the death of Justice Antonin Scalia in February of this year, the Court, along with the rest of the nation, has been awaiting the results of the November presidential election to learn who would appoint the individual to fill that vacancy, and, consequently, whether the Court would indeed undergo the expected philosophical tectonic shift.

With the election of Donald Trump, it appears that conservatives can breathe a tentative sigh of relief, as the shortlist of nominees to which President-elect Trump has committed himself for the duration of his presidency includes men and women whose records indicate they are indisputably conservative stalwarts.

Regardless of who replaces Justice Scalia, the Supreme Court lost an intellectual and constitutional giant with his passing.  In his absence, and without yet knowing who will be asked to undertake the immense task of filling his seat, it seems that some conservative members of the Court still harbor concerns about the future of constitutional jurisprudence. At a Federalist Society event last week, Justice Samuel Alito, who served alongside Scalia, albeit twenty years his junior on the Court, expressed uncertainty about how the Court, moving forward, will treat issues on which its members are sharply divided: First Amendment rights, including the freedoms of speech and religion; the Second Amendment right to keep and bear arms; the contours of the scope of government authority; and even judicial activism.

Justice Alito praised Justice Scalia’s commitment to textualism—i.e., interpreting a legal provision without deviating from its plain meaning—and his understanding that the protection of our constitutional rights is only possible when we uphold the foundational structure of our Constitution. Whether the next member of the Court will share Justice Scalia’s allegiance to the Constitution, as written, is undoubtedly a valid concern.

Later in the day, Justice Clarence Thomas addressed the event’s attendees and urged them to continue Justice Scalia’s efforts through a commitment to the constitutional principle of limited government. Justice Thomas lamented in particular the times the Supreme Court has gone outside the Constitution to identify and grant rights.

Justice Alito referenced a T-shirt he received from a group of law students that reads “WWSD,” for “What Would Scalia Do?” and opined that the question is no longer merely academic but has taken on real meaning for the future of the Court and the Constitution. Based on the potential nominees President-elect Trump has chosen, it appears conservatives have reason to expect the next member of the Court to ask the same question and, whatever the answer, to take a similar approach.

I, like Justice Alito, certainly hope so.

Latest in
Supreme Court

Pro-Abortion Left Desperate to Block Kavanaugh

By ACLJ.org1531408128105

There’s a famous saying that is often attributed to Winston Churchill that goes: “You have enemies? Good. That means you've stood up for something, sometime in your life.” Based on the pro-abortion Left’s reaction, President Trump’s Supreme Court nominee Judge Brett Kavanaugh has done something...

read more

Nomination of Judge Kavanaugh is “Superb Choice”

By Jay Sekulow1531186349259

Just moments ago, President Trump nominated Judge Brett Kavanaugh of the DC Circuit Court of Appeals to be the next Associate Justice of the Supreme Court. The nomination of Judge Kavanaugh to fill the vacancy created with the retirement of Justice Anthony Kennedy is a superb choice who is certain...

read more

Supreme Court Seat Has the Left in a Panic

By ACLJ.org1530889927366

The Supreme Court landscape is about to once again shift with the selection of a new Justice, and the pro-abortion Left is in a complete panic. When Supreme Court Justice Anthony Kennedy announced his retirement, effective at the end of July, President Trump indicated that he would move fast to...

read more

Justice Kennedy Retiring - Opening on Supreme Court

By Jay Sekulow1530130669532

Justice Anthony Kennedy has just announced that he will retire from the Supreme Court effective July 31st. I have had the privilege of appearing before Justice Kennedy on numerous occasions over the past three decades. While he often ruled in our favor – even when he disagreed, he did so in a way...

read more