Sunday, February 14, 2016

The Tragedy of Antonin Scalia

Much of the dislike of Scalia (whom I disagreed with and saw as a force for harm on many many questions) is also a side-effect of how our undemocratic Supreme Court works. Partisan disagreements get played out in the weird lexicon and theoretical debates of legal elites, and views fading from influence and acceptability hang on there as long as life tenure lasts. It's the flip side of the adoration of RBG: we treat the Justices half like titled aristocrats authorized to rule us, half like maddening older family members whom we can't escape and can't stop resenting.

But within that weird elite world, Scalia started with a perfectly cogent view: as the least democratic branch of government, the courts should interpret their authority narrowly to leave more room for legislatures and the executive to make and revisit political judgments. This, not ancestor worship, was the basis of his originalism and his "textualist" way of reading statutes. (His motives for developing this view must have had plenty of conservatism in them, but general theories of legal interpretation tend to grow from, or alongside, other commitments - another weird feature of this whole institution.)
Yet Scalia's vanity undid him. That's not a slur on him. People are vain, the culture is vain, and life tenure being addressed as "your honor" must foster it. As time went on, he wrote more and more in a voice intended for the papers, the blogs, and the conservative presses that republished his dissents. He appealed half-nakedly to the biases of the GOP's conservative constituents. He mercilessly mocked writers of majority opinions, who were not always as smart as he and certainly wrote less engagingly (but also less floridly). He helped to make the Supreme Court, in the public's eye, not just a political body, but THE SAME KIND OF POLITICAL BODY as every other. That is just what he would not have wanted, had he been able to reflect on it in advance, and had he meant what he said about the Court's role.

His opinions as time went on also lost some of their quality of principle. I believe a genuine conservative would not have reached for the desperate and novel theory that almost knocked out the Affordable Care Act in 2012. I would like to think he would have been much less certain about the lessons of history that aligned conveniently with NRA propaganda in creating a personal right to bear arms in 2008. Scalia joined the aggrandizement of an increasingly conservative court. Perhaps he was growing more cynical about the possibility of doing anything else. If so, he was not alone, and the particular quality of that cynicism was something he had helped to cultivate, quite against his own better intentions.

May he find more peace than he offered to most of the vulnerable who came before his Court. Like most of us, he meant well once.