How to Replace Justice Scalia on the Supreme Court

President-elect Trump says he wants to nominate a justice like the late Antonin Scalia to the U.S. Supreme Court. That means a justice who follows the judicial philosophy of “originalism.”

Originalism is the view that we should interpret the Constitution much as we interpret other legal documents — in accordance with the understanding of the people who adopted it. Until the mid-20th century, almost every Supreme Court justice was an originalist. Almost every judge still is an originalist as to every kind of document except the Constitution.

During the 1940s, President Franklin Roosevelt appointed a majority of justices who disregarded the traditional rules of judging. His “liberal” appointees allowed the federal government to smash through the limits the Constitution had placed on its power. In many cases, they pretended that the Constitution mandated their personal social views.

Some presidents have tried to return the Court to responsible judging by appointing originalists to the Supreme Court. Once on the Court, however, most have turned out not to be originalists at all. Several have proved to be fervent judicial liberals. By contrast, liberal appointees have invariably remained liberal.

There are many reasons for this asymmetry, including the perverse incentives prevailing in Washington, D.C. My own view is we should adopt a constitutional amendment moving the Court to a more centralized location, such as Kansas City or Salt Lake .
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