By Dave Andrusko
When Supreme Court Justice Antonin Scalia passed away over the weekend, National Right to Life issued a statement that was as on point as it was brief:
We are deeply saddened by the death of Justice Antonin Scalia. Justice Scalia steadfastly defended the right of elected lawmakers to enact laws that protect unborn children and their mothers and he often issued powerful critiques of the judicially manufactured barriers that limited such legislative efforts. Our thoughts and prayers are with Justice Scalia’s widow and family.
Later in the week and in the monthly digital edition of National Right to Life News, we’ll talk in more depth about the kind of legal genius whose impact will on for decades. In this post, I will add a few additional thoughts to NRLC’s heart-felt tribute.
When pro-lifers read through so many Supreme Court decisions on abortion, decisions whose contempt for state legislatures was matched only by their indifference to the fate of unborn children, we could count on Justice Scalia to cut through the dithering and the deception and the duplicity.
Unlike many of his colleagues, he really did understand there are three branches of government and that the Supreme Court ought to pay appropriate deference to men and women elected by the people. Justice Scalia’s withering critiques of untethered judicial activism will be read by law students for generations to come.
As it relates to our issues, it’s important to remember that Justice Scalia warned decades ago that a kind of judicial mission creep might lead a future Supreme Court to declare that lurking in the penumbras of the Constitution is a “right” to physician-assisted suicide. Which, of course, is but one reason the kind of jurist who will be his eventual replacement is so important.
One other area of reflection. When I read the editorial in today’s Washington Post, it inadvertently included a paragraph that explains why he was so ahead of his time and why journalist heavyweights—for all their professed “progressivism”—are so behind the times, not ahead.
The Post editorial board tells us condescendingly, “But on the issues that most animated him and the conservative activists who cheered him” (abortion was one of three cited), Scalia “did not, over time” carry the day. Why? Because his “Originalism, however cogent, could not sway more pragmatic justices,” who, we were assured, “understood, better than Scalia did, the risks of setting the court against contemporary culture.”
Really? “Contemporary culture” is the lens through which legislation should be seen to determine its constitutionality. Maybe Obama will nominate a Kardashian.
More importantly, what the Post means is that whatever currents are running heaviest and highest right now ought to determine the direction the judiciary will flow in the culture.
Never mind that currents come and go. Never mind with that if that be your lodestar, legal breakthroughs that everyone agrees are to be congratulated would never have occurred in the first place.
And never mind that “contemporary culture” didn’t give us Roe v. Wade. One could make a plausible case that the abortion “reform” had reached its high water mark by 1972 and the tide was already receding. We were burdened by Roe and abortion on demand by seven unelected justices.
Again our hearts and prayers go out to Justice Scalia’s family. They lost a great husband, father, and grandfather.
Unborn children lost a great champion.