Remembering Scalia

By Andrew Cohen

Permission to use Andrew Cohen’s article granted graciously by the Brennan Center for Justice.
The author Andrew Cohen is a Montrealer

Let’s now try to be as clear about Antonin Scalia in death as he tried to be in life. He surely was a hero to a hundred million conservatives who saw his originalist approach to constitutional doctrine as a bulwark against the forces of demographic and cultural change. Yet he surely was a villain to a hundred million liberals who saw him as an eternally angry man, often a bully, seeking forever to thwart progress and equality. That he was both these things at the same time for so long explains why he was a transcendent Supreme Court justice, a man whose many philosophies will be cited, in court and beyond, for centuries to come.

Having covered his work on the Court for nearly two decades, I came gradually to understand the nature of the dissonance and contradictions he created and nurtured on the American scene. For he was, above all else, an operator, a former bureaucrat who was so much smarter than everyone else around him, and so eager to exert that intellect in blunt tones, that he figured out how to mesh his partisan ideology with a constitutional doctrine at precisely the right time in history to make both stick. He deserves immense credit for this. He was a potent activist who decried activism; a man with an agenda who used an anti-agenda doctrine as the patina of his intellectual life.

By this I do not mean to suggest that he did not ardently believe what he said. If ever there were a public official who said what he meant and meant what he said it was Antonin Scalia. I simply mean that he took with him to the federal bench, first on the D.C. Circuit Court of Appeals and later to the Supreme Court itself, the same crusades he had fought from his first nomination to the Nixon administration. To his credit, he never hid that; not in his majority opinions, or in his famous dissents, or in his public remarks at countless speaking engagements over the years. He was a conservative Republican who never stopped being a partisan politician just because he wore a robe.

Yet for such a partisan justice he was not a successful judicial politician. Many biographers and others have noted that he alienated fellow Republican appointees Sandra Day O’Connor and Anthony Kennedy, whose votes he needed in some of the 5-4 cases he lost. As consequential as Justice Scalia was during his three decades at the Court–a colossus, we all can agree– he surely would have been more so had he more capably cultivated those colleagues. But then, I suppose, he would not have been Scalia, a man forever certain that he was right even when he was patently wrong.

He was, indeed, self-righteous in the old-fashioned way. Instead of merely voting to gut the Voting Rights Act a few years ago in Shelby County v. Holder he chose also to mock the epic federal law by calling it a “racial entitlement” for blacks. Instead of merely voting down challenges to the death penalty one case after the other over the decades he chose to declare, in Kansas v. Marsh, that no one had ever proved that America had ever executed an innocent man. Instead of merely expanding first amendment religious protections whenever he could he practically campaigned for more religion in public life.

He wrote a stirring dissent in Hamdi v. Rumsfeld defending the Great Writ of habeas corpus but both before and after that 2004 case he stood by while the force of the Great Writ was undermined in countless cases involving domestic criminal defendants thanks to a terrible Clinton-era statute, the Antiterrorism and Effective Death Penalty Act which he consistently endorsed. He was in favor of vast executive branch power during the Nixon and Bush presidencies but opposed to it during both the Clinton and Obama administrations. He helped put George W. Bush into the White House, in a decision that forever taints the Court, and then told the nation to “get over it.”

He was at his candid best when he was railing against legislators for drafting and enacting laws that were so ambiguous that they needed intense judicial interpretation. When he called out lawmakers for being cowards in that sense he was speaking for every judge, everywhere, who struggled to make sense of the mishmash (Scalia might have called it “argle bargle”) of legislation. He was at his worst when he was hectoring people, often young people, who had the temerity to ask him tough questions that he did not want to answer.

His friendship with Justice Ruth Bader Ginsburg always is cited as an example of Justice Scalia’s personal appeal; his ability, off the bench, to fraternize with those whose political and legal views he abhorred. But that quaint Beltway friendship, and the fact that Justice Scalia was by all accounts entertaining at cocktail parties, didn’t help the millions of litigants—employees, minorities, the poor, etc.– whose lives were made measurably worse by the votes he issued in his decades on the Court. For those people, through the years, Justice Scalia’s hoary notion of constitutional “originalism” was merely another lawyer’s word that meant that they were going to lose.

A hundred years from now historians of all stripes will remember Justice Scalia as the anchor and avatar of one of the most conservative courts in American history; as the man who filled in the walls and floors and ceilings of the ideological foundation started by Chief Justices William Rehnquist and Warren Burger toward the end of the 20th Century. I bet our grandchildren and great-grandchildren will be as divided as we have been over whether his dogged work over the years was in the end good or bad for the country.

Source : http://www.brennancenter.org/analysis/scalia-without-tears