Supreme Standoff

Justice Antonin Scalia’s sudden death in February created a vacancy on the U.S. Supreme Court during a highly volatile time — right before a hotly contested presidential election, with a sitting Democrat President. No matter how or when the vacancy is filled, it will deeply affect not only the balance of power between conservatives and liberals on the Supreme Court but the very life of our nation.

Two Legatus members and the senior counsel for the Alliance Defending Freedom weigh in on the Supreme Court vacancy.

JOHN BURSCH is a member of Legatus’ Grand Rapids Chapter. He is a partner in the law firm of Warner, Norcross and Judd. He has argued nine cases in the front of the U.S. Supreme Court.

CHARLES LIMANDRI is a member of Legatus’ San Diego Chapter and received Legatus’ Ambassador of the Year award in 2005. He is the founder of the Law Offices of Charles LiMandri. He spearheaded efforts to maintain traditional marriage in California. LiMandri is helping to defend David Daleiden from Planned Parenthood lawsuits.

DAVID CORTMAN is the senior counsel for the Alliance Defending Freedom. He is ADF’s primary U.S. Supreme Court litigator.

WHAT LEGACY DID JUSTICE SCALIA LEAVE AT THE SUPREME COURT?

BURSCH: His biggest contribution was his approach to judging, which was through “originalism.” This means that when Congress enacts a statute, you need to apply the plain words. Words don’t change meanings. If you want to change the meaning, you do it through an amendment. Several judges ascribe to the idea of a “living Constitution.” They look at the spirit and how it would apply today, but Scalia just applied the text. This has become the dominant philosophy. It has had a major impact on the judiciary throughout the country.

LIMANDRI: Scalia was a very faithful adherent to the “originalist” interpretation of the Constitution. He was very clear and consistent. The only way to properly interpret the Constitution was: What did they [the Founding Fathers] intend? You can’t project yourself into it. You can’t do it in light of current fads, because these can change and shift. These demi-gods [progressive judges] hold themselves out as enlightened ones and scoff at the Founding Fathers. Scalia was a voice of sanity and truth, and he influenced his colleagues by tempering them. There have been lots of conservative judges who have been influenced by Scalia. His clarity of voice has given lots of material to conservative thought.

CORTMAN: Justice Scalia was one of the most influential Supreme Court justices of all time. His wit and intellect were admired by Americans of all political persuasions, and his adherence to the text and original meaning of the Constitution illuminated the way we understand the law.

WHAT WAS YOUR REACTION TO MERRICK GARLAND’S NOMINATION?

BURSCH: He is a pretty moderate choice. Garland is very centrist in his views. We do not know about his views on abortion and same-sex “marriage,” but President Obama would only nominate someone with his views. On religious liberty cases, he has had four cases. On two cases, he was in favor the government. On the other two cases, he was in favor of the plaintiff. Garland is well liked by everyone and he’d be a fairly easy person to confirm, except that this is an election year. Some Republicans who are up for re-election this year have expressed a willingness to speak to him. This is a pretty rare situation — to nominate a Supreme Court Justice during the last year of a lame duck presidency. It hasn’t happened in 80 years. If he gets approved, he would be the fourth Jewish justice on the current Supreme Court.

LIMANDRI: Merrick is, at best, a moderate, but he is predisposed to liberal positions. Obama wants someone who follows his views: empathy rather than judicial precedent. He wants judges who bend with the times, which is trending liberal. I don’t want any nomination that Obama makes to be approved.

WHO WOULD YOU LIKE TO SEE APPOINTED?

LIMANDRI: I would like for Republican leadership to stand by and not act on this nomination. They’re not required to do so. There is no more important issue than the replacement of Scalia. People don’t realize that our Founding Fathers were enlightened. When they got stuck writing the Constitution, it was Ben Franklin who asked everyone to take a few days off to pray. George Washington dedicated the U.S. to Christ.

CORTLAND: The concern every time a new nomination to the Supreme Court comes up is whether the nominee will faithfully interpret the Constitution and rule in accordance with its original meaning. It’s no different this time, so of course ADF hopes that the next justice to be seated for a lifetime appointment on the court will uphold the Constitution and apply the law neutrally.

HOW WILL THE NEXT JUSTICE AFFECT THE BALANCE OF POWER?

BURSCH: Before Scalia’s death we had four conservatives and four liberals, and Kennedy was a swing voter. If we appoint a liberal, then all the cases will come out more liberal.

LIMANDRI: We’re talking about someone who will serve for 10 to 20 years. They will influence the U.S. for decades. There are issues in SCOTUS — like the HHS mandate, religious liberty, the effort to regulate abortion clinics, the second amendment, immigration issues, the death penalty — these are important issues that will determine if the U.S. can turn around or continue down this path. If liberal judges get the majority, for those of us with a Judeo-Christian point of view, our country will be put in a free fall: Religious liberty will be written out of existence, devout Catholics will go to jail. Liberals will see us as traitors. They don’t like how we think. This will turn into a desire to destroy us. I know from experience from my work in defending marriage in California. I have gotten hateful emails and death threats.

CORTLAND: Every Supreme Court justice is extremely important. However, Justice Scalia’s passing is unique, not only because of who he was and what he represented, but because of the time in history in which we lost him.

DOES THE SUPREME COURT HAVE TOO MUCH POWER?

BURSCH: It has been a long time since we’ve been able to democratically decide things. There has been a legal gridlock in Congress, so things are now decided in the courts.

LIMANDRI: SCOTUS has taken over power it was not intended to have. It’s supposed to interpret, not make laws. The source of interpretation is the Constitution and the text of laws. You have to look at what the law says, not what you want it to say. On same-sex “marriage,” the Constitution says nothing on marriage. It was always left up to the states. The US v Windsor case said that two years ago. And then two years later, they ruled in Obergefell v Hodges to legalize same-sex “marriage.” SCOTUS has stolen power from the people. Two out of three people had voted against same-sex “marriage” in state referendums. SCOTUS has destroyed the institution that allows life to come in an ordered way.

SABRINA ARENA FERRISI is Legatus magazine’s senior staff writer