The President’s Super Power

Here’s another reason to vote in November: when one of the nine members of the United States Supreme Court resigns or retires, the President nominates his or her successor. With few exceptions, the nominee is routinely confirmed by the Senate and serves for life.

The closely split 5-4 decisions on Obamacare, Citizens United, and Bush vs. Gore highlight just how important each justice is. But unless you’re a lawyer as I am, you probably don’t track pronouncements by individual justices.

However, women should pay close attention to comments by Justice Antonin Scalia. Scalia is the Court’s arch conservative, an intellectual powerhouse and a ferocious advocate.  He has long been on record that the groundbreaking Roe vs. Wade abortion decision was wrong. In a recent interview on Fox News, he opined that Griswold vs. Connecticut (a decision that struck down state restrictions on birth control) was wrong as well.

It isn’t surprising that a Jesuit-educated lawyer with nine children would reach these conclusions.  However, Scalia is scrupulous about separating his personal beliefs from his legal scholarship.

Scalia approaches his judicial decisions as a “textualist” and an “originalist.” A textualist looks first to the exact language of the Constitution and then, as an originalist, considers what meanings the words had at the time they were written.

The Due Process Clause of the Fourteenth Amendment of the Constitution was the basis of the Roe and Griswold decisions. Here’s where the trouble begins: the Fourteenth Amendment was adopted in 1868 during the Reconstruction Era. The Due Process Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”

Scalia believes that in 1868 the term person did not include “women” because women were viewed as property at the time. Additionally, a person of that era (obviously a male person because no other existed in 1868) would not construe “life, liberty or property” to include contraception or abortion.



In Griswold, the Supreme Court found that a right of privacy existed in the “penumbras” and “emanations” of the Constitution.  A couple’s right to contraception was protected by this ephemeral right of privacy. The Supreme Court relied on the same right of privacy as the basis of the Roe decision.

Scalia’s textualist and originalist approaches also led to his conclusion that women have no Constitutional right to be free of discrimination when the Supreme Court considered Virginia Military Academy’s refusal to admit women. He wrote a scathing dissent to Justice Ruth Bader Ginsburg’s opinion that any law should be struck down which “denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society.”

Scalia’s position is that if citizens want access to abortion or contraception or to prohibit single-sex public schools, they can provide for that through the democratic process of passing laws to that effect. True in theory but increasing partisanship has dramatically diminished this opportunity. As William N. Eskridge Jr., a law professor at Yale noted, “It gives the Supreme Court significantly more power and Congress significantly less power.”

Scalia was appointed to the Supreme Court in 1986 by President Reagan and was chosen over Robert Bork, his leading competitor for the nomination, because he was ten years younger and would therefore shape the court’s decisions for a longer time.

Scalia’s positions underscore the importance of the upcoming Presidential election. As the last four years have shown, a President’s agenda can be derailed by legislative opposition.

As you decide how to cast your ballot in the 2012 Presidential election, remember the power of the President to appoint Supreme Court justices. That appointment power may have a longer impact on your life than any other action taken by the President between 2012 and 2016


Photo credit onecle via the Creative Commons License.

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  • silly_moo

    Boy am I glad Britain doesn’t have a codified constitution!