In 2012, Supreme Court Justice Antonin Scalia told Fox News Channel’s Chris Wallace, in his characteristic style:
I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25–26 years. I mean, I shouldn’t have to tell you that, unless you think I’m a fool.
In the wake of his death this weekend, honoring Scalia’s wish must be the new top priority of every pro-lifer in the country.
Perhaps no other modern political issue is more intertwined with the judiciary than abortion. Most of our major controversies are relatively free to be voted up or down by legislatures, but for 43 years Roe v. Wade has forbidden the American people from having a say in whether to allow abortion. Even regulations that don’t run afoul of Roe are routinely tied up in abortion-lobby lawsuits.
Scalia was a clear-eyed, unapologetic foe of both judicial domination over abortion policy and the corrupt legal philosophy that enabled it. His judicial philosophy was deceptively simple:
Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.
In a sane world, this wouldn’t be considered a philosophy; it would simply be honesty about the obvious. He just as simply explained that pro-aborts’ favored alternative, the Living Constitution that “evolves” with the sensibilities and needs of the future, was nothing short of cancerous to free self-government:
I have put this question — you know I speak at law schools with some frequency just to make trouble — and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other. And finally, this is what I will conclude with although it is not on a happy note. The worst thing about the Living Constitution is that it will destroy the Constitution.
These simple principles led Scalia to a simple yet inarguable conclusion on how the Constitution treats abortion:
No one ever thought that the American people ever voted to prohibit limitations on abortion. I mean, there is nothing in the Constitution that says that […] You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way.
There was not yet a clear-cut Supreme Court majority for overturning Roe with Scalia; if President Barack Obama succeeds in getting a replacement on the bench, it will be a devastating blow for the pro-life movement. Not only will it establish a lopsided majority for the status quo, and doom the states’ chances of passing common-sense clinic regulations, it may very well embolden pro-abortion radicals on the court to go further in disenfranchising the public on even more aspects of abortion.
Incrementalism as a pro-life strategy will cease to be viable if the increments become microscopic.
It is encouraging that Senate Majority Leader Mitch McConnell and Judiciary Committee Chair Chuck Grassley have already come out against confirming a replacement for the remainder of Obama’s presidency, but whether they have the fortitude to keep that promise throughout the coming storm is another matter entirely (it wouldn’t be the first time McConnell caved to pro-abortion pressure, after all). Democrats are already screaming (hypocritically, let’s recall) that GOP senators are engaging in “obstructionism,” neglecting their constitutional duty to fill a vacancy, and—the one that really stings—“ guarantee[ing] they lose control of the Senate.” The media is already starting to pile on, such as a nonsensical New York Daily News editorial claiming that what’s at stake is “that the wheels of constitutional government must keep turning even if that means that individual lawmakers will not always get their way.”
No, what’s at stake is the Constitution getting its way. There is no equivalency between judges who faithfully apply the Constitution and judges who subvert it, which is precisely what Obama has in mind for his nominees. Remember, the Constitution’s provision that the president “shall nominate” judges “by and with the advice and consent of the Senate” has never meant the Senate is obligated to approve whoever he wants; such an absurd reading defeats the very concept of consent. Senators are, however, bound by oath to defend the Constitution itself—including against threats wearing black robes.
It isn’t right that the future of our fight to save the preborn hangs so precariously on the fate of a government branch we can’t even vote on. So this is also a reminder that pro-lifers need to get serious about strategies to take abortion out of the Supreme Court’s hands, both through legislation to call Roe on its admission that “of course” it would fall if the “suggestion of personhood is established,” and legislation using Congress’s Article III, Section 2 authority to make “exceptions” and “regulations” to SCOTUS’s jurisdiction and take all abortion cases out of their hands.
But in the meantime, the entire pro-life movement must dedicate itself to a year of rallying as much pressure on the Senate as possible to stand strong against Obama’s assault, and not vote on—nor even consider—any nominee to replace Antonin Scalia. Readers can start by clicking here to look up contact information for their own senators. We owe it to the memory of a great man, to ensure that whoever fills his shoes is dedicated to the same principle he was:
I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed.
