Old Mortality: Scalia

The Overseers 

The death of Antonin Scalia evokes a strange feeling in the  liberal soul. 

In one sense, you do not want to celebrate the death of an opponent who did not threaten you personally, with whom you disagreed vehemently, but for whom you wished no personal harm.

It was odd to think he went to the opera regularly with Justice Ginsberg.

The Angry Authority

And yet one cannot help but react with hope. Hope because his death might allow this pivotal institution, this bastion of conservative power, to be changed.

With the possible exception of  Justice Clarence Thomas, there was no more conservative and predictable and destructive member of the court. All you needed was a single sentence summary of any case which carried social significance and you knew exactly how Justice Scalia would vote: always with the powerful, always against the underdog, always to resist rulings which allowed the weak to protest the rules to be made by the strong.

In Citizens United, he led the charge to ensure money and the power it can buy prevailed.  Even in as purely symbolic a case as Bong Hits for Jesus, he sided not with the student, who was forced by authority in the person of his principal to line up along a road to cheer the passing of the commercial Olympic torch, but he sided with the principal who tore down the student's protest banner. In the case of a Black man arrested while riding as a passenger in a car because his name was mistakenly included in a police warrant record on a computer, strip searched and subjected to repeated rectal exams, Scalia voted the authorities had a prevailing interest in maintaining strip searches to protect the jailers, to protect those who had guns and jails and manpower to protect themselves, against stripped and shackled prisoners. He claimed to be an originalist, a man who sought in the holy parchment the law as laid down by the founding fathers, but when it came to the Second Amendment, the only sentence in the Constitution where the founding fathers explain why they confer a right to the people ("A well regulated militia, being necessary to the security of a free state...") he ignored what is so clearly stated to find in that sentence an affirmation of the right to individual gun ownership. Again, the rich and powerful NRA spoke more loudly to him than the voices of gun violence victims. 

His contempt for the powerless was visceral.  Like so many people who embrace religion, he believed  holy scripture contained The Word, whether that was the Bible or the Constitution, and he thought he could hear that word when others could not.

 His contempt for the dispossessed, the underclass, the poor, the weak was writ large  in every opinion and in his taunting questions from the bench during oral arguments.

It is hard to mourn his death, from the point of view of a citizen who did not know him, but who knows only the effects of his rancid decisions as they rumbled like an angry river breaching its banks across the every day life of the community.

As a father, as a colleague, as an opera aficionado, he may have been a wonderful man.  But as a man with a vote more powerful than all but eight other citizens, in a land of 300 million,  he was a scourge.

I cannot bring myself to feel any more sadness at the news of his death than I would feel hearing the news of the death of George Wallace, Charles Lindbergh, Henry Ford or any other bigoted, pitiless man. There are men who feel smug about the power they wield because they feel they deserve to have it and to exert it, and these men are usually the men who use power most destructively.

Of course, we all expected to hear the announcement of the death of Justice Ginsberg, given her age, or Justice Sotomayor, considering her diabetes, but Scalia simply seemed too mean to die. 

President Obama will nominate a new Supreme Court Justice and the Senate will refuse to confirm, but at least the Supreme Court will come front and center during this year's Presidential Election. The importance of the power of the President to nominate a Supreme Court Justice will not be an abstraction or a what if. It is now concrete.