Some thoughts on our sad, predictable reaction to Scalia’s death

The words “giant” or “legend” get thrown around far too much these days, but they fit Justice Antonin Scalia.  The single greatest influence on the Supreme Court since, perhaps, Oliver Wendell Holmes, he almost singlehandedly effected a sea change in American jurisprudence.

by Curt Bentley
by Curt Bentley

Prior to Scalia originalism and textualism (or course, I’m using words loosely here, a tendency Scalia himself often criticized) were not taken seriously; they were the province of the fringe and the intellectually lazy.  Now, they form the guiding principles for much of the work done by lawyers all over the country.  Ongoing battles over constitutional interpretation in the Supreme Court notwithstanding, textualism as the principal means of ascertaining legislative and contractual intent is so ingrained in America’s legal system that no other approach is seriously considered by lawyers of any political persuasion.

This was not the case pre-Scalia.  He gave textualism and originalism a sharp-witted and razor-tongued champion, who, in many respects, so confounded many his opponents for years that they are only now catching up — 30 years later.

United States Supreme Court Justice Antonin Scalia
United States Supreme Court Justice Antonin Scalia

Of course he didn’t do it all on this own, and he alienated an awful lot of people along the way. Nonetheless, whether they love him or they hate him, the intellectually honest acknowledge his unmatched influence.  His colleagues certainly did, even when they strenuously disagreed.

And they liked him, the liberals and the conservatives.

Whether liberals recognize it or not, they are better off, intellectually speaking, because of Scalia.  Even if they discount what he said, the power and persuasiveness with which he said it required them, for the first time since the New Deal, to formulate and give a serious response to critics.

Ginsburg and Justice Antonin Scalia ride an elephant in India in 1994.
Ginsburg and Justice Antonin Scalia ride an elephant in India in 1994.

But much more will be said about Scalia’s legacy by those who actually knew him personally and are much more qualified to talk about it than myself.  Read what they have to say.  Especially if what they have to say is something you’re initially inclined to disagree with.

I want to spend a few moments talking about us.  Specifically, about how we respond to the death of a person so politically prominent and polarizing.

Predictably, responses vary by ideology. And things I’ve heard in the few short hours since news of Scalia’s death broke — let me just say that it’s not pretty and doesn’t say much to recommend us.

Scalia and Kagan - Hunting Buddies
Scalia and Kagan – Hunting Buddies

Many liberals see in Scalia’s death the vanquishment of a foe.  “Ding dong, the witch is dead!”  They look and behold the opportunity for real progress, now that a conservative majority Court no longer stands in the way. Treating the death of a towering figure and human being with all the nuance of an election night victory party, they publicly consider all the possibilities for Supreme Court reversal on everything from federalism, to campaign finance reform, to criminal law.  Now we can remake the world!

But, of course, “progress” in this sense really means, “the achievement of our political goals.”  It doesn’t seem like it means actually treating people better.  Otherwise, common courtesy wouldn’t be so quickly sacrificed to the immediate political objective.  I want to suggest to you (and I’m picking on liberals here, because they’re on this side of this particular circumstance) that it is very odd for liberals to react as they have done to Scalia’s death then speak in dejected and puzzled tones about how toxic and unfeeling our country has become.  And how selfish and focused on personal aggrandizement rather than the benefit and betterment of all!  What’s wrong with people??!!

Let’s have a self-awareness moment:  Sure, a billionaire may sell his soul for money and power, and another for his religion or her gun rights, but might you consider the extent to which one could also sell his or her soul for universal healthcare or higher pay for teachers?  And the extent to which it’s any better in the long run?  Just a thought.

Now, conservatives, to you.

Many conservatives, before even dashing off a tribute to one of their champions, began circling the wagons around the remarkable idea that the Senate refuse to confirm a new appointee until the Democrats have lost the upcoming election…err, I mean, until a new President has been elected.  All this to ensure the sanctity of “the people’s voice” in the nominating and confirmation process.  Of course, by “people” we mean the ones who will vote in a future election, not the ones who voted in the election that governs the current time period.

Aside from being remarkable in its novelty (though not, unfortunately, in its predictability), this is at least as equally shortsighted as the liberal reaction — even setting aside the fact that, in my view, such a strategy (if actually carried out) would effectively hand an election to the Democrats that the conservatives are already in real danger of losing.

Passionate defenders of the Constitution now demand that the Senate purposefully obstruct a President’s constitutional responsibility, and thereby hamstring the work of the third branch of government.  All on the theory that…?  Bueller?  Bueller?  Of course, there is no theory, other than they cannot stand the thought of losing “control” of the Supreme Court for the first time in more than a generation.  We must hold the Court at all costs, they think.  And since we hold the Senate, we can do it!

And maybe they could, though I doubt it.  Again, at what cost?  Conservatives would do well to bear in mind the words of Robert Bolt from his play, A Man for All Seasons (something that they are generally very fond of quoting):

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

If conservatives want to guarantee an activist judiciary where cases are determined on the basis of political victories and losses, they should take the tack that they’re proposing.  If they are committed to working back against that tendency (a tendency that has always been there, but with increasing frequency since the Democrats borked Bork), they should place some trust in the institutions and documents they tearfully pledge allegiance to and the people they represent.  Go to work and make your case.  They don’t have to surrender to the Democrats.  But they do need to acknowledge the fact that Barack Obama was elected twice matters, and that gives him the right to appoint a judge to the Court.  Trust me, it’s in your pocket Constitution.

Americans of all stripes bemoan the increasing politicization of the judiciary.  And yet, when given an opportunity to depoliticize (even just a little bit), they instead double down.  The thought of losing a political battle — and folks, we’re talking about just a piece rather than the whole enchilada — over healthcare, entitlement spending, gun rights regulation, or you name whatever else, is apparently so terrifying that we’re willing to throw aside the most rudimentary human courtesy and all the rules of the game to the wind.

If this is really the case, what’s broken isn’t Washington.  It’s us.


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