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The End of the Scalia Era

President Reagan and Judge Scalia in 1986. Courtesy Ronald Reagan Library.

I met Justice Scalia only once. He spoke at Washington University in St. Louis while I was president of the College Republicans there, and I attend a lunch with him and a half-dozen faculty and other students. What stands out in my memory is Scalia’s answer to a professor who asked whether he objected to demographic quotas on the Supreme Court—that is, whether the idea that there now had to be at least one black justice, at least one female justice, etc., was a problem. Scalia cheerfully said it was not, as long as those who filled the quotas were qualified. After all, there had been quotas of other kinds in the past, he noted, such as a requirement that the court should have a distinct Southern representation.

Scalia’s death throws into question another, more important balance on the court, the ideological one. Senate Majority Leader Mitch McConnell and all the Republican candidates on stage in South Carolina on Saturday night said that President Obama should not bother trying to nominate anyone to fill Scalia’s vacancy. Let the next president make the appointment, they say, and let this be something voters decide when they choose that president in November. In terms of textbook civics the suggestion is appalling, but the political realities are clear-cut: a Republican Senate—indeed, a Republican judiciary committee—will not grant a lame-duck Democratic president a chance to replace a Republican justice in an election year. The court had a 5-4 Republican majority before Scalia’s death, though the mercurial Anthony Kennedy—Scalia’s fellow Reagan appointee—kept the court from reliably aligning with the Republican right. Even the most moderate Obama appointee would give America the most liberal and Democratic court in 30 years.

Republicans are, of course, taking a risk: should a Democrat be elected as president in November with significant coattails in Senate races, the result would be a much stronger hand for a successor from Obama’s party to play in picking judges. But some Republicans see the risk as a clarifying one—indeed, as something that will unify the party around an electable candidate, one not named Donald Trump. The GOP establishment certainly sees the case for a candidate like Marco Rubio or Jeb Bush strengthened by this turn, while Ted Cruz, the only 2016 aspirant with judicial experience, is banking on it helping him. Trump has so far defied the litmus tests of movement-conservative orthodoxy, but the idea that one must vote for a viable Republican for the sake of getting Supreme Court justices who will re-moralize America and defend free markets through their constitutional jurisprudence remains a knockdown argument for many voters on the right.

No matter what happens, conservatives who hope that Supreme Court appointments will turn the tide of the culture war are apt to be disappointed. Since the brutal Robert Bork hearings, a generation of lawyers aspiring to land on the Supreme Court one day has learned to keep quiet about controversial subjects. That first of all makes identifying reliably right-wing nominees difficult, and it further means that having acquired a habit of avoiding conflict even a right-leaning nominee might not have much spirit for battle once on the court. Certainly it’s hard to imagine any new justice following Scalia’s example as an outspoken cultural combatant. Justice Alito is not quite another Scalia, and future justices promise to be more in the mold of John Roberts.

For this reason, even if movement conservatism enjoys a brief renewal of its consensus in the wake of Scalia’s death, in the long run Scalia will be seen as the last really unifying figure of the postwar American right. Paleoconservatives and right-leaning libertarians, as well as the establishment right, idolized Scalia, and the promise of another Scalia kept them all in the Republican Party—or at least voting for Republican presidents. Scalia was the embodiment of conservative opposition to the liberal jurisprudence of the ’60s and ’70s, and that opposition was the glue that held the conservative movement together over the last 40 years, as the end of the Cold War and the waning electoral power of welfare liberalism attenuated other sources of unity.

Ironically, the best chance the Reagan right might have for gaining a new lease on life, in an era when talk about tax cuts and military build-ups has become passe, could rest with a revival of judicial liberalism. But probably even that would not restore the matrix out of which the Reagan consensus came. War, immigration, trade, and political correctness are the issues that quicken conservatives’ pulses these days, and the Supreme Court is not the left’s driving force in any of them. That could change—but until it does, the right will be more divided by policy differences than unified by a common foe in the judiciary.

Antonin Scalia was a titan of his time. But there are no more Scalias waiting to take the stage, and in the years to come the Supreme Court may not be the stage that matters most.

about the author

Daniel McCarthy is the editor of Modern Age: A Conservative Review, and Editor-at-Large of The American Conservative. His writing has appeared in the New York Times, USA Today, The Spectator, The National Interest, Reason, and many other publications. Outside of journalism he has worked as internet communications coordinator for the Ron Paul 2008 presidential campaign and as senior editor of ISI Books. He is a graduate of Washington University in St. Louis, where he studied classics. Follow him on Twitter.

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