It’s now over 200 years ago, in the case Marbury v. Madison, that the Supreme Court tentatively set itself up as America’s ultimate arbiter, with what we call “judicial review.”

The meaning of then-President Thomas Jefferson’s comment that it made our Constitution “a mere thing of wax in the hands of the judiciary” is clear enough.

And it’s to our credit as a nation that it’s taken until now to fully devolve along those predictable lines. But we’ve now arrived at a point where conservative Supreme Court majorities have become what I like to call “Supreme Dictators of Square Nation.”

No one in U.S. history has been more instrumental in that devolution than the late Justice Antonin Scalia, the so-called “Originalist” who was also somehow anxious to apply the invented-in-the-1970s “cost-benefit analysis” in his decisions, apparently as a matter of personal whim. His whims were pro-corporate without variation, as far as I can tell.

Apparently he was a witty and convivial old gent, who will be missed by all who knew him personally. But the fact that he’ll no longer be an ultimate decision-maker is an unmixed blessing.

His legacy-of-the-moment includes an unprecedented grant of relief to states around EPA rulemaking that will delay mandated air-quality improvements for at least a year, as his influence among the justices, in this and other matters, went well beyond his single vote.

It all serves to clarify the stakes of this year’s election. The identity of new justices may be the only difference it will make. In view of global warming/climate change, and the fact that another Republican jurist would likely make rulings around environmental issues that would be fatal to our posterity, that identity is liable to be a life and death matter.

James Silin


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