By Jeffrey Toobin
Atonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.
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His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” He went on, “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 life style that they believe to be immoral and destructive.”
But it was in his jurisprudence that Scalia most self-consciously looked to the past. He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century. During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues. (Scalia’s clashes with O’Connor were far more significant than his much chronicled friendship with Ruth Bader Ginsburg.) It was not until 2008, after John G. Roberts, Jr., had succeeded Rehnquist, that Scalia finally got a blockbuster: District of Columbia v. Heller, about the Second Amendment. Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns. Even Scalia’s ideological allies recognized the folly of trying to divine the “intent” of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”
Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”