I was determined yesterday not to comment on Justice Antonin Scalia’s legacy on the Supreme Court, choosing to focus instead on the political implications of the vacancy. I remain committed to that, in large part because the man only barely passed away and I feel that anything I might say about his impact on law, culture and jurisprudence would be tinged with inappropriate (?) negative passion I might later regret.
Fortunately, I don’t have to. Back in 2014 here at Washington Monthly, Michael O’Donnell wrote a fantastic book review of Bruce Allen Murphy’s “Scalia: A Court of One,” that says most of it for me, and then followed that up with an excellent bit today. From the book review:
Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
And from today:
I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.
The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court and his votes in some crucial 5-4 decisions have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raisingly nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.
In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. As O’Donnell says:
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.