“In life, Scalia insisted that the content of constitutional law must be determined by the “original public meaning” of the text adopted by the framers some two hundred and forty years ago, and should be unaffected by contemporary politics;”
“in the wake of his death, the inescapable influence of politics on constitutional interpretation could not be more clear.”
“In the short term, this could make the Court’s decisions less politically charged: a tie leaves the lower court decision unchanged, but creates no precedent for future cases.”
“All the political machinations surrounding Scalia’s replacement would have troubled Scalia, who was a firm believer that the Constitution and its interpretation should not be subject to political pressures.”
“He will be most remembered for his stalwart defense of “originalist” interpretation, a school of thought that insists that the only legitimate way to interpret the Constitution is to ascertain what it meant to the generation that adopted it.”
“In his view, any other approach to constitutional interpretation affords judges too much leeway to impose their own personal preferences.”
“On today’s Supreme Court, only Justice Thomas adheres to originalism as rigidly as Justice Scalia did. Everyone agrees that original understandings are a starting point in interpreting the Constitution, but the rest of the justices, like the vast majority of those who have served on the Court throughout its history, employ a more pragmatic approach. They recognize that giving the Constitution meaning over centuries requires elaborations far beyond the contemplation of the framers.”
“The framers understood that the power to interpret the Constitution and declare when acts of the political branches are invalid was a grave one. But they maintained that some branch had to have such power if the Constitution was to constrain the government, and that of the three branches, the Court was the least dangerous.”
“They also ensured that the Court itself would be subject to political checks: they made its jurisdiction subject to congressional control, provided for amendment of the Constitution and impeachment of judges by Congress, and, most importantly, directed that the justices would be appointed by the president with the consent of the Senate.”
“In this sense, the Court’s makeup and the Constitution’s meaning have always been informed by politics.”
“Scalia’s vision of a Constitution that was somehow immune from the contending forces that shape—and indeed, constitute—us as an evolving nation was an illusion. And it has never been more dramatically refuted than by the political battles that have already broken out in the days since his death.”