Resetting the Post-Scalia Supreme Court
The voting rights decision was a pet project of Chief Justice Roberts, an opponent of the Voting Rights Act since his days as a young lawyer in the Reagan administration. But Justice Scalia was much more than just a passenger. His behavior during the oral argument gave a public face to the ugliness behind the attack on the foundational civil rights law, which both houses of Congress had reauthorized by overwhelming margins.
.. His frequent parroting of right-wing talking points in recent years may have reflected the contraction of his intellectual universe. In an interview with the writer Jennifer Senior (now a New York Times book critic) in New York magazine in 2013, Justice Scalia said he got most of his news from the car radio and from skimming The Wall Street Journal and the conservative Washington Times. He said he stopped reading The Washington Post because it had become so “shrilly, shrilly liberal” that he “couldn’t handle it anymore.”
.. These insights might help explain why someone as smart as Antonin Scalia seemed so un-self-conscious about his inflammatory rhetoric. He was simply giving voice to those he spent his time with. His world was one that reinforced and never challenged him.
.. About 10 years ago, I attended a gathering of Canadian judges and lawyers at Cambridge University. Justice Scalia gave his stump speech there about how his Constitution was not “living” but “dead,” with legitimate constitutional interpretation limited to the words and original understanding of the document’s authors. He may or may not have known that in Canada, constitutional interpretation starts from the premise that “the Constitution is a living tree.”
.. But I came to realize that Justice Scalia wasn’t playing the inside game. No matter that he never persuaded a majority of his fellow conservatives on the court to sign up for his brand of originalism.
What mattered was his ability to invoke originalism as a mobilizing tool outside the court, in speeches and in dissenting opinions. The message was that courts have no business recognizing “new” rights. (Except, evidently, new rights of which Justice Scalia approved, such as an unconstrained right for corporations to spend money in politics.)
.. Within a matter of months, federal district judges around the country invoked Justice Scalia’s dissent in striking down same-sex marriage bans. The much less polemical dissent in Windsor by Chief Justice Roberts, describing the decision as a narrow one based on principles of federalism, went uncited.
Had Justice Scalia overreached?