Justice Scalia's Death and the Fight for the Soul of Our Constitution

The unexpected death of Justice Antonin Scalia and the resulting Supreme Court vacancy has rattled a political system already destabilized by what is shaping up to be a bizarre political campaign. On the one hand, it would seem that the last thing we need is yet another point of conflict between highly polarized camps. But maybe the opposite is true. Maybe this event, tragic of course for Justice Scalia's family and admirers, serves an important purpose for the country. A Supreme Court vacancy has engendered a moment of clarity, forcing the voters and candidates to confront directly what we have long believed to be true: the future of the Supreme Court is the single most important issue in the election of 2016.

Anyone who has followed the obstructionist treatment of President Obama's judicial nominees by Senate Republicans for the past seven years cannot possibly be surprised by the knee-jerk intransigence on display since Scalia's death. Within moments of the announcement that the Justice was gone, Republican officials were already announcing that no nominee, no matter who it was, would even be considered. No hearings, no vote, nothing. With almost a year left in his term, Barack Obama's presidency and his constitutional duties were declared null and void.

Republican obstructionists, including all presidential candidates, insisted that only the will of the next president mattered; the current one doesn't count. Senate Majority Leader Mitch McConnell bizarrely asserted that "The American people should have a voice in the selection of the next Supreme Court justice," conveniently forgetting that, in fact, they had exercised that voice when they reelected Barack Obama in 2012. Evidently, in the Republican mind, Democratic presidents serve three-year terms.

We fully support President Obama's decision to exercise his constitutional duty to nominate a replacement and urge Republicans in the Senate to reject calls from their right-wing base and fulfill their concurrent obligation to fairly and expeditiously consider the nominee. The Court can't go for a full term and a half or more in a debilitated state, and to suggest otherwise is to embrace fully the politics of destruction, denial, and obstruction, to say nothing of showing utter contempt for our legal system and the Constitution itself.

But no matter which side you're on, the intensity of the fight demonstrates what is unequivocally true: the future of the Supreme Court is the future of America.

Justice Scalia's passing reinforced one indisputable fact: there are three more Supreme Court justices who will be over 80 years old during the coming presidential term (Justices Ginsburg, Kennedy, and Breyer). There is a reasonable likelihood that there will be additional vacancies in the next few years; this is just Round One.

The bottom line is that the next president will likely shape the direction and philosophy of the Court for generations to come. In our system, the presidency lasts four or eight years, but Supreme Court justices can stay for a lifetime, setting precedents that bind us for generations.

So what's at stake? In a word, everything.

Just in the current term alone, the Court is considering whether states can enact restrictions on abortion providers that may render Roe v. Wade a functional nullity; whether the government can effectively regulate the emissions of coal-burning power plants and meaningfully address climate change; whether public-sector workers can organize in effective unions; whether affirmative action is dead or alive; and whether the president's policies on immigration are valid.

All of those issues now sit on a knife's edge and their ultimate disposition will shape American society in profound ways. That's scary enough. But there is something else coming that may be even worse.

It's no secret that plans are being made in right-wing think tanks and law firms, within the conservative media, and among Republican leaders to bring back to life the 19th-century notion that the Constitution prevents the government from interfering in business activity in any meaningful way.

If implemented as many conservatives hope, the minimum wage, environmental regulations, clean air and water laws, banking regulations, worker health and safety rules, and other similar regulations and statutes that protect the public welfare would fall. And once the concept that the regulation of economic activity is impermissible under the Constitution itself, corporations would be free to do whatever they want, and no law could be passed to stop them.

It will not shock you to know that this radical legal time machine, set to take us back to the 19th century and the era of the Robber Barons, is being built by the Koch brothers and the other usual suspects such as the Scaife, Bradley, Walton, and DeVos families. They fund the think tanks, litigators, law schools, and lobbying groups that are building the intellectual and political infrastructure to make this happen. The same millionaires and billionaires who are trying to capture our political system are coming for the Constitution. It's not enough that they own our politics; they want to own the law itself.

We've been through this before. The horrible 19th-century abuses of workers, immigrants, women, children, and the environment occurred during a period when the Court shielded corporate power from government interference. Remember, it was President Franklin D. Roosevelt who complained in his first term that the Supreme Court's stringently pro-corporate decisions had created a "no man's land" where the government could get nothing done. Until public pressure forced the Court to back off in the late 1930s, the entire New Deal almost came crashing down.

If you don't believe we could face this again, read the abstract to a research paper by Thomas Colby and Peter J. Smith called The Return of Lochner, which spells out one of the primary theories for their longed-for Robber Baron Revival. They write, "...conservatives have patiently waited for the theory to come together - for the blueprints to be drawn - before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground."

The death of Antonin Scalia has made the stakes in this election crystal clear in a way that almost nothing else could. It is no exaggeration to say that the Supreme Court can unravel much of the social, economic, and political progress we have made in the last century. On the other hand, it also can help engender a society built on justice, fairness, equity, and an acknowledgment of our common interests as a diverse and open-hearted people.

This year, voters will not only be selecting a president, they will also be deciding if America is ready to move boldly into the 21st century or is doomed to retreat into the dark past we thought we had long ago put behind us.