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A Champion Falls

The Left has big hopes for the Supreme Court

By Dave Skinner

The sudden death of U.S. Supreme Court Justice Antonin Scalia comes as a shock on many levels. Any time America loses a great mind, all Americans lose. Justice Scalia was, by all accounts, one of only a handful in the federal judiciary whose opinions were actually readable, whether or not one agreed with his reasoning. He could also give a pretty good lecture. Whether reading or listening to Justice Scalia, I for one could always count on learning something useful.

I say useful because Justice Scalia could articulate and defend a conservative interpretation of the Constitution better than anyone else on the Supreme Court – a real champion.

We all like to pretend our judiciary is evenhanded, nonpartisan – you know, “just.” But the reality is less ideal, especially at the top. Appointees to the Supreme Court are given a lifetime power to choose, hear and settle questions of law that are not just technical, but sometimes bitterly ideological.

Every single Supreme Court decision has the potential to empower, or render utterly impotent, the other two branches of federal government. Add in the fact that all the legislative, administrative and legal actions of state and local governments are also under the oversight of the U.S. Supreme Court, and we’re talking some pretty serious power – the power to set or remove limits on government power itself.

Justices are given the power of kings (and queens, I guess) – and picking our uniquely American court royalty has always been difficult.

Prior to Scalia’s death, the conventional wisdom was the next President could expect to nominate, and the Senate to confirm, replacements for the four justices in their late 70s and early 80s – one conservative, one “swinger,” and two liberals. The future “balance” of the court would hinge on who Americans chose for the White House and Senate in 2016.

Then the conservative died.

Now our liberal lame-duck president will exercise his right to nominate who will almost certainly be someone President Barack Obama trusts to protect his “legacy” after he leaves office.

Senate Republicans can’t stop Obama from making a nomination. The Constitution, Article II Section 2, reads the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint […] Judges of the Supreme Court.” There’s nothing in there about lame ducks or impending elections – nor is there anything saying the Senate has to confirm any nominee.

Does the makeup of the Supreme Court matter? Vastly, in ways that matter to Montana. For example, the week prior to Scalia’s death, the Supreme Court froze enforcement of President Obama’s so-called “Clean Power Plan.”

What happens with the CPP matters to Montana, because in the long run, CPP will determine the fate of Colstrip and Montana’s vast coal reserves. Five conservatives supported freezing CPP implementation, with the four liberals wanting to keep the process underway while the rule is fought over in a lower court. With Scalia gone, the Supreme Court is deadlocked 4-4 – leaving the lower, Obama-packed court in charge.

Another example – I’m a member of the National Rifle Association. For the last few years, the NRA has been warning members that the two big Supreme Court decisions affirming the individual right of Americans to keep and bear arms came from deeply divided 5-4 decisions. There was no common ground between the factions.

What if the majority flips and the math changes? Will I be burying all those guns and ammo (which I don’t have) until the Supreme Court flips back? Will I dig all that stuff (which I don’t have) back up again if the Supreme Court doesn’t flip back?

The Left has big hopes for the Supreme Court. Before Justice Scalia died, some progressive pundits were floating scenarios where the old 5-4 mix would rapidly become a 6-3 “progressive” majority for the long term.

Now that Justice Scalia is gone, the potential for a major leftward ideological shift on the Supreme Court is even greater – everything will depend on how Americans vote in 2016. As the liberal Brookings Institution put it, “if a Democrat succeeds Obama, the Court’s conservatism will be buried with [Scalia].”