The sudden death of Justice Antonin Scalia forces us to reconsider the role that the Constitution plays in our rhetoric and in our imagination. Our constitutional system is more fraught than most of us had dared admit, even as our politics has leaned ever-more-strongly on the Constitution to unify the opposition to the left.
In the moments after Scalia’s death was announced, Michael Brendan Dougherty wrote that it “Says something horrible about our system of government that one death has people imagining the complete legal transformation of the country.”
Dougherty is right. The death of Scalia exposes a dangerous rigidity within the structure of the Constitution itself. A compact, aggressive, and liberal Supreme Court majority could enact whatever social policies it chose and could exercise an all-purpose veto over state or congressional legislation that would run afoul of the preferences of the left. As long as the liberals on the Court retained the support of thirty-four senators in order to block either constitutional amendment or senatorial removal, the Court could act as it pleased.
As long as the center-left retained a blocking one-third-plus-one in the Senate, elections would have no effect. One option would be to wait, for decades maybe, for sufficient Court openings to correspond fortuitously with moments of center-right control of the government. The only other option that could be enacted with simple congressional majorities would be for a combination of the abolition of the filibuster and the kinds of court packing that hasn’t been attempted in eighty years and that would destroy whatever legitimacy remained in the federal judiciary. It is hard not to conclude that the Constitution is not all that we hoped.
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