There seems to be this sense that the very fabric of American constitutionalism could tear in half depending on whom Obama nominates to fill the newly created vacancy on the Court. It’s the “we have to elect a Republican to get ‘good’ judges on the SCOTUS” hysteria on steroids.
People seem to forget Justice Roberts counts among those “good judges” nominated by Republicans. He was so good he turned a penalty into a tax back into a penalty to “constitutionalize” Obamacare.
Scalia was certainly one of the best justices on the court in terms of reading the Constitution through a conservative lens. But that’s like talking about the best way to have your head pushed into a pile of poo. One guy might be a bit gentler about it, but your head is still in poo.
The truth is, the fabric of American constitutionalism was shredded long ago. Scalia followed precedent, and most of it is wrong in terms of the original constitution. It’s like working an algebra problem thinking 2+2=5. Even if you work the problem correctly, you’re still going to come up with the wrong answer. Your foundation is wrong. Scalia wrote some decent opinions, but by and large he allowed erroneous precedent bind him.
Even the “best” Supreme Court judges you could hope for will always get many things wrong because they accept the opinions of past judges who drastically expanded federal power through bastardizations of the commerce clause, the general welfare clause and many other constitutional provisions.
The Supreme Court is not going to protect your rights. It is not going to limit federal power.
The SCOTUS wasn’t limiting the feds when Scalia was on the Court and it won’t with him gone.
The Supreme Court is part of the federal government. The justices are federal employees. They are politically connected lawyers who have worked their way through a federal system that views itself to be supreme in all ways. They are all federal supremacists. Expecting these people to ever rein in federal power borders on insanity.
We need to stop.