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Ave Scalia

November 14, 2009

Have you been wanting to learn more about Antonin Scalia, but find the prospect of keeping his acquaintance throughout a book-length treatment repellant? This article will help you out.

The article starts off evenhanded: Scalia is so colorful, Scalia is so passionate. But then the rhetoric shifts, reminding us of the sham that is Scalia’s professed ideology of “textualism,” “strict constructionism,” or “originalism.”

A first example, in which Scalia reads between the lines and realizes that James Madison and Benjamin Franklin hated gays:

Scalia often gets laughs at conservative gatherings by reminding his listeners that homosexuality is nowhere mentioned in the Constitution. (Neither is God, but I digress.) Yet his dissent in Romer v. Evans, the 1996 decision overturning an amendment to Colorado’s state constitution that prohibited local jurisdictions from passing gay-favoring anti-discrimination ordinances, also claimed American law “allowed distinctions between homosexual and heterosexual conduct.” How can it, if the Founders were mute on the topic?  You’d love some originalist to explain that one.

But who could forget…

the most glaring example of Scalia and his fellow conservatives’ readiness to ignore their own dogma for the sake of a desired political result will always be Bush v. Gore, the 2000 decision that put W. in the White House.  As Biskupic puts it,  “It would be difficult to overstate how much Scalia had tried to rein in the Court’s use of the equal protection guarantee” — the provision of the Fourteenth Amendment that’s been anathema to conservatives since the Warren Court’s expansive readings of it — “and how much the Rehnquist Court had been defined by its federalism decisions safeguarding state authority.” Nonetheless, both those principles got heaved overboard for the sake of protecting Florida voters’ right to vote for George Bush, whether or not they’d meant to.

The National Opinion Research Center did the definitive recount of the 2000 Election (Disclosure: I am a former employee of NORC). While NORC hesitates to declare a winner, I’ve read the study and think it implies Gore won Florida with a high probability. (But make that call for yourself. Citation of original study here. Here is speculation as to how 9/11 kept the NORC study from being publicized.)

In any case, thinking about the 2000 election just makes me upset. Half of my anger comes from the fact that saying “Bush stole the election” is still considered rude and provocative in most situations. I’ve always wanted to hear a Republican acknowledge, “Yes, we stole the election. And we’d do it again!” Then I’d just say to myself, “Politics is politics,” and move on. Then I read this:

Tellingly, the [Bush v. Gore] decision included a proviso that “our consideration is limited to the present circumstances” — meaning it shouldn’t be used as a precedent, despite the awkward fact that establishing those is the Supreme Court’s raison d’être. Snappish even for him, Scalia’s standard reply when Bush v. Gore comes up at public forums is “Get over it,” suggesting he knows perfectly well that it turned his own proudly advertised judicial philosophy into a sham.

Nope, still angry.

——

Also relevant: This summer I read Sean Wilentz’s The Age of Reagan: A History, 1974-2008 (highly recommended). The book is good on many levels. But relevant to this post, Wilentz shows how Reagan and his appointees were responsible for turning the Supreme Court from a fairly innocuous institution into an institution that vies with the Senate in terms of destructiveness. Wilentz also makes a very good case that Bush stole the 2000 election!

Wilentz’s book really does read like a field guide to Republican cynicism: Wilentz shows that Reagan was a race-baiter. Wilentz shows that Reaganites embraced supply-side economics even after they learned that its creator had fabricated all of his data. Wilentz reminds us that the Iran-Contra scandal was a serious constitutional crisis, the continued personality cult around Oliver North notwithstanding. And so on.

Also interesting: one of the security guards in Harvard’s Lamont library is a big fan of Sean Wilentz. He told me that he has called up Wilentz with questions about his books, and that Wilentz was friendly and helpful. What a stand-up guy.

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