What Would Scalia Do? – The Future of Constitutional Jurisprudence at the Supreme Court

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.