Dead but the battle goes on

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Scalia's place at the Supreme Court bench draped in mourning

| Within hours of the announcement of Scalia's death at a resort in Texas, with the body hardly cold, the battle over his successor erupted in full force.

Mitch McConnell
Mitch McConnell escalating obstruction to a whole new level

Mitch McConnell (R-KY), majority leader of the Senate, that would under normal circumstances confirm the president's nominee, wasted not a moment of another opportunity to obstruct and delegitimize President Barack Obama and declared, "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president" (Politico.com). What else is new? Of course, that ignored the fact that the American people have already expressed their voice twice to elect Barack Obama president.

The Republican presidential candidates quickly fell in line, declaring that Obama must not be allowed to fill the seat. However, I do think that they are going to live to regret their haste in throwing up the barricades. Let's say the do obstruct an appointment. They are assuming that they will win the next election and therefore the Republican nominee will get to fill the seat. That (a) is a big assumption and (b) hands Democrats a big issue to run on and fire up the Democratic base. Be careful, Mitch, what you wish for… That vacancy could well be filled by a President Hillary or a President Bernie!

Then began a spate of articles and op-eds extolling Scalia and his impact on the court. (Apparently the admonition to not speak ill of the dead has powerful cultural currency.) Numerous writers pointed out that privately Scalia could be witty and charming. His close friendship with Justice Ruth Bader Ginsburg is often held up as proof that Scalia had the gift of being able to separate out the personal from views on the issues.

As faithful readers will suspect, I have different views.

Oh yeah

To my mind, Scalia was a destructive force, anchoring the conservative majority to issue wrong-headed decisions. He is responsible in large measure for the increasing politicization of the court, making it a tool of partisan politics. Along with that has come decreasing trust in the Supreme Court as an institution. Disapproval of the Court has now crept higher than approval.

Gallup poll
Gallup poll

I will also freely admit that the first thought crossing my mind when I heard that Scalia was dead and had died at a hunting resort in Texas was, "Maybe he was hunting with Dick Cheney!"

There is no doubt that Scalia had an enormous impact on the Supreme Court. He wrote few majority opinions, but he held the most conservative views on the court. He promulgated the theory of originalism, holding that the Constitution should always be interpreted in terms of what it meant to those who ratified it over 200 years ago. Whereas some talk about the Constitution as a "living document," in Scalia's view the Constitution is a dead document to which the accreted changes of the centuries are irrelevant. He didn't cotton to any "interpretive jiggery-pokery."

The logical problem with Scalia's theory is that you have to believe that the original founders could see clearly into the distant future and anticipate all that has happened in the last 200 years. Not likely.

As part of a 5–4 conservative majority on many cases, Scalia was the "activist judge" that he so often railed against. Under that majority the Court has taken a hard-right turn, eviscerating the Civil Rights Act, unleashing Big Money to overwhelm our elections, intervening in the 2000 election to favor George W Bush over Al Gore, and so on and on and on.

What Scalia is best known for, among lay people, is the blunt sarcasm of his questions from the bench and in his dissents (of which there are many, since he wouldn't sign on to an opinion unless he agreed with absolutely every word). He was imminently quotable and his pithy ruminations often made their way into newspapers and the media. He often read his dissents from the bench in a sort of performance art. Recently he opined that universities and colleges should not take race into account for admissions, rather that African-American students should go to "a less advanced school, a slower-track school where they do well."

For a balanced and thoughtful critique of Scalia's tenure, I highly recommend Linda Greenhouse's op-ed in the NYTimes: Resetting the Post-Scalia Supreme Court

I have no idea how the replacement of Scalia mixed with the toxic brew of presidential politics and knee-jerk obstructionism of the Senate Republicans will play out. What I do know is that it's going to be ugly!

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Last updated on May 1, 2016

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