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Black History Month
O PINION
February 24, 2016
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One of the Most Destructive Justices of Our Time
The legacy of
Antonin Scalia
d onald k aul
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 jus-
tice. 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 ind 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 de-
structive justices of recent times.
Named to the court by Ronald Reagan
in 1986, he revived a conservative judi-
cial philosophy that had long lain dor-
by
mant: originalism.
It’s an approach that treats the Consti-
tution 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.
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 so-
cial 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 liter-
alists, 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 expedi-
ence. 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 Sca-
lia’s belief that we should supposedly
treat the Constitution as a “sacred” docu-
ment, 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 iat. Imagine
what might have been, just in one re-
gard. 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, Mich. Distributed by
OtherWords.org.