The death of Supreme Court Justice Antonin Scalia does not bring with it the end of an era. Like Augustus Caesar and Ray Kroc, Scalia dies a glorious success, leaving an empire in place on the ruins of a former world. For Scalia, the world to be overcome had been American democracy, and he had had a hand in slaying that unruly dragon years before he passed away in his sleep last weekend.
The conservative Catholic boy from Trenton, who graduated from Harvard Law and helped launch the Federalist Society at the University of Chicago, was a judicial pugilist, raining blows on the lawyers who came before him and on the judges and justices who disagreed with him. A Scalia dissent can read like a more refined version of a YouTube comment. This would only be a matter of personal style, easily forgiven as “cantankerous” in a justice one agrees with, were it not that Scalia’s bullying style emanated from the very positions he held. His was a vision of a bullying society.
Take for instance his H-bomb dissent in the recent same-sex marriage case, Obergefell v. Hodges. In this case, the court ruled 5-4 that same-sex marriage is protected in all states by the Equal Protection and Due Process clauses of the Fourteenth Amendment. Here Scalia invalidates the Supreme Court itself in the name of “American democracy”:
“The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” So saith Nino.
Indeed, so class-conscious and democratic a sentiment as Scalia affects here might strike a more sonorous note were it not affected in the cause of bigotry. Missing in Scalia’s analysis of the Constitution and its judicial review is the protection they afford the minority from the potential legislative tyranny of the majority. The very purpose of the Fourteenth Amendment is to extend to the states limitations on government power provided vis a vis the federal government in the Bill of Rights. Moreover, Scalia’s condemnation of judicial activism rings particularly hollow when we consider the feats of sleight of hand he performed, and performed in the course of extinguishing democracy.
Consider his participation in the shameful Bush v. Gore decision of 2000 when the Supreme Court arrogated to itself the role of selecting the President of the United States, a decision so indefensible that the Court excepted the case from being used in the future as precedent. Equally shameful was the Court’s 2010 ruling in Citizens United v. FEC, where Scalia claimed to be following his “originalist” principles in claiming that corporations are persons for purposes of First Amendment free speech protections, which protections egregiously include monetary campaign contributions. In each case, and throughout his career, Scalia’s true fault was not in confecting “principled” analysis to reach a result-driven decision. That is standard operating procedure for all justices. No, Scalia’s fault lay in his anti-democratic, fascistic, inhumane politics.
Among his last proclamations were his racist remarks during December’s oral arguments in the affirmative action case Fisher v. University of Texas when he said, “There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.” With grim appropriateness, the justice’s last official act seems to have been his denying to grant a stay of execution for Texas prisoner Gustavo Garcia.
As much as any individual, Antonin Scalia bears as his legacy the dismantling of the last vestiges of American democracy, which, except at the local electoral level, is dead. The corporate plutocracy we now inhabit, with its endless wars and its surveillance state, is the America Scalia envisioned and helped to craft. He departs a success, and it is in his America we must now dissent. It is his triumph we must overrule.
Sources: Wikipedia: Antonin Scalia
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