Antonin Scalia – the justice who gave us so much unnecessary contempt while handing down dismissive and even capricious decisions – died on Saturday. While many have focused on the astounding kerfuffle that’s developed, in which Senate Republicans apparently are going to avoid confirming a Supreme Court Justice for eleven months, I’m more interested in taking a moment to remember Scalia before his prominence in this “originalist” era begins to gather dust.
Justice Scalia was a man that’s easy to dismiss as a motley of contradictions. He demanded that LGBT people remain a criminalized class in the name of preventing governmental tyranny. He argued that Black people should receive lesser educational opportunities in the name of their own well being. He cheerfully supported the limits to election spending being the size of your donors’ pocketbooks in the name of free speech. Underneath these baffling justifications, so easily torn down – often delightfully by Ruth Bader Ginsburg – is a kind of stunningly consistent judicial logic. His guiding principle seems to have been that the powerful could define how things were and should be, and that he was very glad to hold an appointed life-long position of power.
At times it’s been presented as a bastardization of his own claims to “textualism” that he supported such a deeply anti-democratic view of politics and the world. That of course involves a certain rosey look at the past that Scalia elevated into an all-encompassing justification. The writings he, and for that matter his colleagues on the court, pour over and cite either were written by or derived from the works of slave owners engaged in genocidal campaigns of colonization. Might makes right isn’t that much of an importation really. What set Scalia apart, even from other conservatives on the court, was his dogmatic insistence that the framers were literally never wrong.
Scalia was a product of an often forgotten era – of Reagan’s shining city upon a hill. The 1980s saw the sudden emergence of an almost mythic devotion to a historically murky period, drawing phrases from a 1630 sermon and connecting them to institutions born from a 1787 political convention. Reagan gave a voice to a conservative backlash to what for some was a frightening new world of LGBT liberation and the Civil Rights Movement. It didn’t matter if they were nonsensical appeals to an inconsistent and complex past as long as they served those suddenly on the defensive as a source of comfort. Scalia’s constitutionalism was to some degree little more than an intellectually buttressed version of the same argument from historical authority in the name of authority itself.
The term-less appointment to the Supreme Court let Antonin Scalia sit as a reminder of that time period even while Reagan gave way to Bush, then Clinton, and ultimately Obama. Anthony Kennedy, a centrist alternative put forward after Robert Bork had made it too clear what power for power’s sake looked like, never so fully encapsulated what that Reagan-era moment in history looked like, and has had a judicial career that lived beyond it. Scalia was there alongside him of course, writing more dissents and opinions than almost any other justice in history, but his judicial outlook seemed frozen in time compared to Kennedy’s. At the end of the day, he could only shout at the slow but steady advancement past that Reagan-era reaction or align himself with the positively Macchiavellian rightwing adaptations to that new climate.
Even as people politically opposed to him – again there’s always Ginsberg – mourn him, there is some recognition in liberal circles that what has passed is not just this man but the era that produced him. Far more than former Chief Justice Rehnquist’s passing of his position to current Chief Justice Roberts, Scalia’s death portends a new structural alignment on the court. Any nominee from Obama, even a comparatively centrist one, is going to tip the fragile balance further to the left on most issues.
A Republican blockade against sitting any appointee from the president is the perfect procedural issue to fire up the liberal vote in the 2016 races, and an almost guarantee that another Democratic president would issue their nominations to a more friendly Senate in 2017. Insisting that no one be seated is a complaint with essentially no point, since the anger is that an era is over. Republicans might as well direct those complaints at the demographic shifts in the country, at the transformation of their social wedge issues into liabilities, at the failure of their promised prosperity to manifest for most.
Much like how liberal appointments in the 1930s and 1940s paved the way for the Warren Court of the 1950s and 1960s, the growing liberal bloc on the Supreme Court is a reflection of what has followed Reagan – Clinton’s and Obama’s two-term administrations. The Supreme Court serves as a sort of record of what came before, softly echoing the presidency and to a lesser extent congress. Part of what died on Saturday was the tangible impact of Ronald Reagan, and the political party which still holds debates at his presidential library doesn’t seem to be taking it well.