Had
the late justice not violated his own philosophy, George W. Bush might not have
occupied the White House and brought on the Iraq War.
By
My mother always told me never to speak ill of the dead.
For that reason I won’t go on at length about Antonin Scalia,
the recently departed Supreme Court justice. My opinion wouldn’t be worth that
much anyway. I didn’t know the man — I was never even in the same room with
him.
However, I do find this avalanche of posthumous praise of him as
“a judicial giant” and one of the great justices of our history a little
gag-inducing.
OK, he was a bon
vivant and a fun guy who
wrote snarky, entertaining opinions. I get that. As a jurist, however, he left
much to be desired. As a matter of fact, he was terrible — one of the most
destructive justices of recent times.
Named to the court by Ronald Reagan in 1986, he revived a
conservative judicial philosophy that had long lain dormant: originalism.
It’s an approach that treats the Constitution as holy writ, a
set of rules written in stone that allows very little room for broad
interpretation.
Cases that came to the Supreme Court, in Scalia’s view, were to be viewed exclusively through the lens of an 18th-century document, with no attempt to adjust to the changes in society wrought by time.
Cases that came to the Supreme Court, in Scalia’s view, were to be viewed exclusively through the lens of an 18th-century document, with no attempt to adjust to the changes in society wrought by time.
He didn’t want a living, breathing Constitution. He wanted a
dead one.
His argument was that the wisdom of nine unelected jurists was no match for the wisdom of the people as expressed in laws written by their elected representatives.
In other words, if people wanted social change, let them vote
for it. That argument makes hash of the theory of constitutional government,
which holds that the Constitution acts as a bulwark to protect the rights of
the minority against the desires of the majority.
And Scalia might say: “Where are those rights in the
Constitution? Show me.”
Generally speaking I’m against literalists, whether religious or
political. The people who believe in the literal truth of the Bible, for
example — who arrive at the conclusion that the earth was created 5,000 years
ago because that’s what the “begats” add up to — are only one step removed from
the originalists who are slaves to our founding fathers.
Who, not incidentally, accepted the enslavement of millions of
Americans and denied a majority of this country’s inhabitants the right to
vote.
Scalia was perhaps useful as a check on judges who might take
unbridled license with the Constitution. But I object to the constant theme in
Scalia’s obituaries that he was a man of ironclad principles who didn’t deviate
from his beliefs to satisfy expedience. For those who believe that, I offer two
words and a letter: Bush v. Gore.
Scalia was the point man on the court when it halted the recount
of ballots in Florida and effectively gave the 2000 presidential election to
George W. Bush, who received fewer votes nationwide than his opponent, Al Gore. Subsequent reporting revealed
that a full recount would have proven that Gore beat Bush in Florida, too — and
therefore won that White House race.
Whether or not you agree with Scalia’s belief that we should
supposedly treat the Constitution as a “sacred” document, there’s no evidence
that it gives the Supreme Court any role in the conduct of elections. That task
is left to the states.
Where was Scalia’s famed originalism then? Somehow he swept it
under the carpet.
Scalia was unapologetic about
his pivotal role in the election. When asked about it in later years, he would
dismiss the question with the sneering remark: “Get over it.”
Get over it? I’d love to get over it. I’d love not to have had
George W. Bush made president by judicial fiat. Imagine what might have been,
just in one regard. Our troops wouldn’t have invaded Iraq. Perhaps the Middle
East wouldn’t have exploded, sending its toxic fallout throughout the Western
world.
That’s not how things went. I think Scalia went against his
principles to make a political decision that favored the party to which he owed
his career.
That’s his real legacy.
OtherWords
columnist Donald Kaul lives in Ann Arbor, Michigan. OtherWords.org.