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Vol. 80/No. 8      February 29, 2016


Scalia’s death prompts debate on
Supreme Court, Bill of Rights

The Feb. 13 death of Supreme Court Justice Antonin Scalia sparked a partisan debate on nominating his replacement and a broader debate about the role of the court and the place of the Bill of Rights and other amendments to the Constitution that defend equal protection under the law.

Democratic presidential candidates Hillary Clinton and Bernie Sanders urged President Barack Obama to nominate a liberal replacement rapidly. Republicans demanded Obama decline to make a nomination, leaving it to the next president in 2017.

Scalia was hated by most liberals and leftists for his socially conservative views, but more importantly because he argued the court should base its rulings strictly on the Constitution, rejecting “outcome-driven” decisions that amount to decreeing laws from the bench.

But it’s in the interest of the working class that the court uphold the Constitution, especially the Bill of Rights and subsequent amendments won in struggle that are protections of the people against the government.

In his dissent on last year’s ruling legalizing gay marriage, Scalia pointed to the narrowness of the class background of the justices, writing they are “only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.”

The justices are all Catholic or Jewish, he pointed out. “Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. … Eight of them grew up in east- and west-coast States.”

Ruth Bader Ginsburg, a long-serving liberal Supreme Court justice, has raised other concerns about what is called judicial activism concerning the court’s 1973 Roe v. Wade ruling that decriminalized abortion. “It’s not that the judgment was wrong, but it moved too far too fast,” cutting short the political fight needed, she told a Columbia Law School symposium in 2012. She has also criticized the court for not basing the decision on the 14th Amendment’s guarantee to every person of equal protection of the laws, a conquest of the revolutionary struggle that ended slavery.

Liberal supporters of judicial activism and the “living Constitution” say the court should prioritize achieving an outcome they view as positive and progressive, and then find some justification.

Scalia took the opposite approach, insisting on applying the Constitution and its amendments strictly, as limits on government abuse.

For example, in Kyllo v. U.S. in 2001, he wrote that the government violated the Fourth Amendment prohibition of unreasonable search and seizure when it used thermal imaging technology without a warrant to detect marijuana cultivation inside a suspect’s house.

When the court struck down a St. Paul, Minnesota, “hate-crime” law against racist speech in 1992, Scalia wrote, “Burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”
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