The Post-Scalia Court and the Culture War

To no one’s particular surprise, the process of filling the Supreme Court vacancy created by Antonin Scalia’s death has morphed into a huge Washington-style power struggle. What may not be so obvious is that the struggle is actually three struggles in one.

These layers of meaning are worth examining for the light that sheds on the troubled state of America today.

On one level, this is a fairly conventional political fight, another of those Democrat-Republican sumo wrestler matches that make up a familiar part of the national scene.

This in turn provides the context for the argument about whether the Senate has a moral obligation either to accept or reject a nominee proposed to it by President Obama in the closing months of his presidency.

That question might be worth discussing if it weren’t for the fact that not a few vociferous participants in the present debate would probably be arguing the opposite side if the political roles were reversed—Republican president doing the nominating, Democrats in control of the Senate.

On a slightly deeper level, then, this is a battle to control the Supreme Court and determine its future direction. Numbers tell the story.

With Scalia’s death, the court is divided 4-4 between liberals and conservatives (although the split becomes 5-3 any time that swing voting Anthony Kennedy votes with the liberals). Any Obama nominee for the court is nearly certain to give court a solid liberal majority of five, even without Kennedy.

Considering the advanced age of several of the court’s members, this seems likely to swing in one direction or the other under the next president. But the prospect of having a guaranteed liberal majority in place even before Obama leaves office doesn’t bode well for conservative interests.

At its deepest level, finally, what we are seeing as the Scalia succession fight unfolds is another battle in an ongoing war—a culture war—over fundamental values. Abortion, euthanasia, religious liberty, and church-state relations are part of it. Same-sex marriage is a particularly good illustration.

Last June the court ruled 5-4 that gay couples have a constitutional right to marry. Implicitly or explicitly, the approval of same-sex marriage involves a profound displacement of the meaning of marriage itself—from a relationship fundamentally oriented to the begetting and nurturing of children to one whose chief purpose is the gratification of the partners.

Justice Kennedy wrote the majority opinion in this not unexpected but highly controversial decision, with Justice Scalia contributing a vigorous dissent. By no means, however, was that the end of the matter, either in the Supreme Court or in American life.

Beyond the constitutionalizing of same-sex marriage lies the determination of gay rights militants and their allies to bring about enforced conformity among those who disagree—to coerce individuals and institutions with conscientious objections to gay marriage to fall in line with the new order or pay for it.

Last year’s scrap over the case of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples and briefly spent time in jail for her convictions, was a hint of what’s to come. The question will return to the Supreme Court in due course.

Against this background, Antonin Scalia’s emphasis on the text of the Constitution and the intentions of its drafters can be seen as an effort within the discipline of law to raise a bulwark against the relativism and moral libertarianism threatening to engulf us. Here’s one more reason, by no means the least, why Scalia will be missed.