US Supreme Court judge dies

Yesterday, I shared a post from a Facebook friend regarding the death of US Supreme Court Justice Antonin Scalia. It contained his photo and a quote that epitomized the big principle that has been and will continue to be hugely controversial as well as a significant one in the US system: The Constitution is not a living organism … It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” A brief and impassioned discussion followed with another Facebook friend, likely taking the alternative view the US Constitution is a living breathing document that should relate to the times we live in, albeit agreeing that that the US system is flawed and has become over politicised and aligned to vested interests.

Antonin Scalia’s death will no doubt attract all sorts of reactions, although sad to note, with a few exceptions, not by many of my friends who do not get the significance. From one admirer of this towering figure in the US judiciary …Today’s news of the death of Supreme Court Justice Antonin Scalia comes as a blow to all Americans who believe in the rule of law and his adherence to an originalist’s view of the Constitution. The court’s longest serving member was one of the greatest jurists of our age. He was a terrific thinker with a fluid pen. Most importantly, he was a devout believer in Jesus Christ. Many of the nation’s most impressive attorneys stood before him. Now, the justice stands before the ultimate Judge of the world. Justice Scalia attempted to save our Constitution. Now, his faith in his Lord and Savior has saved him. Please join me in praying for his wife, Maureen, and their nine children and grandchildren”. Jim Daly – Focus on the Family

From someone who comes over as less sympathetic – and there are many, even though now is the time to mourn … “It would be an understatement to note that Justice Antonin Scalia, who passed away on Saturday, was a controversial figure. Known for his acerbic dissents and what President Obama called a “larger than life presence on the bench”, the supreme court justice’s death immediately provoked discussion on how soon is too soon to note the way a public person’s career negatively affected so many. Analysis Antonin Scalia: man of his word who shaped America in life and in death. Acerbic and loud, the late justice refocused the supreme court to give primacy to the textual meaning of laws even when that differed from his own views. Given Scalia’s penchant for disagreement and unapologetically saying what you think, however, it seems unlikely that he’d take issue with the American people doing the same in the wake of his passing. And the truth is that throughout Scalia’s long tenure on the supreme court, he crafted a legacy that was decidedly regressive and anti-woman. Scalia was a proponent of originalism, believing that the constitution’s meaning is fixed, and should be interpreted in the way the framers originally intended. He was decidedly anti-progressive: Scalia wanted to overturn Roe v Wade, voted against protecting equal pay, wanted states to be able to outlaw gay sex, and sometimes said things outside of the courtroom about these issues that raised eyebrows”. Jessica Valenti – the Guardian

Why am I writing on something that might be deemed as something remote to my own community interests in the UK and, moreover, on a subject that I don’t know much about, I hear some ask? As those who read my blogs know, one of my big subjects, which I will continue to bang on about because most people don’t get it even though I regard the subject as important and having particular ramifications for the next generation of gospel preaching community activists that I would like to encourage, is that of culture wars and the implications for those (of us) on the side that appears right now to be losing. In a way, Scalia might be seen as representing this wrong side. While he would have dissented from the 1973 Roe versus Wade US Supreme Court decision to allow abortion and put forward a powerful argument (that failed to win the day with his Supreme Court colleagues) why gay marriage should NOT be legalized, I suspect he was a far more complex character than to be simply cast into the mould of a conservative reactionary. Clearly, the rights of woman (reference the above article), racial de-segregation and the right of citizens to bear arms as implied in the Second Amendment are all issues that should concern us all, but the pertinent and crucial question is should these be ones a court of nine persons in a country of 318 million be allowed to pronounce on and thereby get round some of the complexities around Federal and State legislation (sometimes in conflict and usually processes incomprehensible to most US outsiders)?

Already there have been sharp exchanges from the US Presidential contenders on the matter of appointing the replacement and the expectations of the appointees. The problem as I see it, perhaps rather simplistically, is that the US Supreme Court has become politicized and depending on whether or not the majority of members are conservative or liberal in their outlook (the “read no more into the constitution than what is stated” brigade versus “it is a living breathing document that has to be adapted to changing times” brigade) will determine the all important, far reaching and binding decisions that the Court makes. Given the current (who will retire at the end of the year) president (Obama) decides who replaces Scalia on the Court bench (but has to be confirmed by the US Senate), I suspect this will be a contentious matter right up to the time we know who is to become the latest addition to that august body.

Back to my days as a schoolboy studying British Constitution, the concept of the separation of powers: (Legislature, Executive and Judiciary) has fascinated me. The simple ideal is the three are separate and independent, with the Legislature comprising (in the UK) Parliament and (in the US) Congress and Senate, making the law, the Executive comprising (in the UK) those from which Party that has the biggest majority in Parliament and (in the US) those who the President appoints, carrying out the law and the Judiciary (both UK and US) being at least part political appointments, ruling on whether or not the law is being correctly applied. There are notable differences of course, e.g. the UK has no written constitution, but in both systems the separation notion is questionable and political opinion and power in both cases plays more a part than we might like to think. But that is what happens in what many outsiders regard as model democracies. I say all this because I wanted to get it off my chest but also when folk observe what is happening in our culture they do so based on understanding.


2 thoughts on “US Supreme Court judge dies

  1. I’m not going to get into the particular issues, such as gay marriage, as I don’t think rehashing those arguments is going to do us any good. On the whole I think this is a nice summary of the situation, though there are a few points I’d pick up on.

    Firstly, I’m not sure that “lame duck” properly applies to Obama here. My understanding is that it refers to a president in the period between the election and the end of his tenure (actually, I think originally it referred to a president in that period who had been defeated in the election).

    Secondly, I don’t see that it’s an argument (as some have said) for Obama not being able to appoint. He will be president until 20th January 2017, meaning he has just under a year left. That’s just under a quarter of his term. There is nothing in the constitution to stop him making the appointment, and I don’t think anyone can seriously think that the Republicans would be making this fuss if one of their own were in the White House.

    As for the Supreme Court becoming political, that horse has long since bolted. Back in the early days of the US, the issue was federalism vs states rights. Now it’s the interpretation of the constitution. But it is down to the President to appoint justices and Obama won the election by some five million votes. He’s president until his term is up.

    Frankly, I find the whole argument unseemly, when a man (whatever you think of his opinions and judgements) has died.

  2. Thanks Matt for your response, which I found helpful even though we disagree on some issues. I should say I find it refreshing to see in a young person with political aspirations a desire to consider the issues.

    I agree going over gay marriage is not altogether helpful but it can’t be denied that just like with the 1973 Abortion decision it does rest on the political outlook of the justices that made those decisions.

    I agree “lame duck” is not an appropriate term to use here and I have modified that statement. Obama is as you rightly point out is the democratically elected leader of the US and it is rightly in his gift to nominate.

    I also agree if the boot was on the other foot the Republicans will be singing a different tune. However, given how much political power the Supreme Court has it seems fair game whatever the politics of the objectors are they should make their views known, although sadly it is often by foul means as well as foul.

    As for the Supreme Court being political in the wider sense, that is a fact. It seems to me that we have the justices making as well as interpreting the law. Whether or not that is desirable is another matter.

    As for the “unseeming” aspect of the argument, I would much rather see more emphasis on paying respects. But life goes on. The recent war of words between Hilary Clinton and Marco Rubio bears evidence of this. Scalia will leave a legacy (and I for one see it as a good one overall) and the relative merits of which is up for debate. That as you might say in other contexts is democracy.

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