Most of America’s judiciary, including the Supreme Court, no longer bases its rulings on the U.S. Constitution, Supreme Court Associate Justice Antonin Scalia contends.
He recently spoke to Santa Clara University Law School students in San Jose, California, sharing that the Supreme Court has been liberal since he was sworn in in 1986. He remarked that the Supreme Court does not consider the Constitution to be a black and white governing document, but rather a “living Constitution,” which changes and evolves over time based on opinions of the justices. Their liberal decisions, he claims, have led America down a slippery slope:
At the bottom of that slope, I can’t imagine how you can go any further, is the right to same-sex marriage.
“Do you think the American people would ever have ratified the Constitution if they had been told the meaning of this document shall be whatever a majority of the Supreme Court says it is. They vote on the basis of what they feel.
“It’s the destruction of our democratic system. I cannot imagine the system can continue with more and more of the basic rules made by the Supreme Court.”
Scalia also remarked that the Court is granting rights to citizens that are not spelled out in the Constitution. Among those wrongfully granted rights is the legalization of homosexual marriage and federally subsidized healthcare insurance. Regarding the same-sex marriage ruling, Scalia said:
To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Scalia is the longest-serving justice currently on the bench, appointed by President Ronald Reagan in 1986. He is often described as “the intellectual anchor for the originalist and textualist position” of the Constitution.
Many consider the Justices to be evenly split between four liberal-leaning justices and four conservative leaning justices, with one moderate conservative. However, Chief Justice John Roberts leans more liberal than conservative, giving liberals a 5-4 edge.
The 2016 election could well decide the future balance of the Supreme Court. The average age of retirement of justices is 78. Including Scalia, three justices are already older than that retirement age. Justices Scalia and Kennedy are 80 years old, Justice Ginsberg is 83 years old, and Justice Breyer is 77 years old.
It’s quite possible that the next president could appoint 3-4 new Supreme Court justices. Considering Scalia’s concern, the outcome of the 2016 election could determine whether the high court continues down its slippery slope or begins to correct some of its erroneous rulings.
This article was first published on November 7, 2015.