It was proper to pay respects to Antonin Scalia. That’s what civilized people do. What has been improper has been the way his views have been represented, actually misrepresented, in the press and, particularly, on television.
Finally, someone has come along and explained, without the sugar and honey, the real record and, more important, the real intent of the late justice. In a short essay (“Looking Back“) focusing on the historical context of Scalia’s hurtful tenure, Jeffrey Toobin, CNN’s senior legal analyst, began:
Antonin 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.
You should read the entire piece, especially noting that Scalia, for all the credit he got for a mammoth intellect, confessed that he “received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio.” Mix that stunning admission in with a reactionary religious upbringing and a silly and self-serving theory of constitutional interpretation, and you have a professional jurist who should always have been fairly viewed as a fairly dangerous man.
But Toobin makes the salient point relevant to this year’s election:
The Court now consists of four liberals (Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) and three hard-core conservatives (Roberts, Clarence Thomas, and Alito), plus Anthony Kennedy, who usually but not always sides with the conservatives. With Scalia’s death, there is a realistic possibility of a liberal majority for the first time in two generations, since the last days of the Warren Court. A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it.
Blindsided or not, Democrats, if they can come together this summer, if they can merge the youthful enthusiasm behind Bernie Sanders with the experience and electability of a seasoned Hillary Clinton, can realize Toobin’s two-generation dream of ridding the country of a conservative majority that has done much damage to the country, but damage that can still be undone if our side wins in November.