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Scalia & One Nation

Some readers can’t figure out why I said over the weekend that my first reaction upon hearing of Justice Scalia’s death was fear for the country. Really? they ask, not unreasonably. He was only one justice on a court of nine, and when you think about it, he was on the losing side of the high-profile issues that religious and social conservatives most care about (that is, abortion and marriage).

Well, I’ve thought about it, and here’s why I still believe my gut reaction was valid. In fact, I believe it now more than I did over the weekend.

First, the death of Scalia has unleashed even more and greater political passions than we have yet seen in this already passionate election year. You will have seen by now that the Senate Republicans have ruled out voting on a nominee to replace Scalia until a new president is in place. This makes sense from one point of view. The partisan one is obvious: the GOP hopes that it’s a Republican president making that appointment. But I think there’s a prudential case to be made for this as well: that the next nomination is going to be the most politically contentious one since Robert Bork’s, and will likely exceed that one in extreme combativeness. It is arguably in the greater interest of the country that the new president and the new Senate make this call, given that the November vote will have been the closest thing we can have to a referendum on the direction the American people want the post-Scalia court to take.

But it is inconceivable that the nomination would be any less contentious if it were made by the new president. Both parties will fight as hard and as dirty as they would have done otherwise. Plus, if I were a Democrat, I would be outraged by what the Senate is doing. The sitting president has a right to nominate a candidate for the Supreme Court; that’s the way our system works. David Frum points out, quite reasonably, that there’s a huge political risk in the Senate GOP refusing to consider an Obama nominee to replace him [1]:

By assuring Obama that he need not worry that a nominee will actually serve on the Court, McConnell empowered and invited the president to play radical politics with the nomination. The big concern Democrats have (or should have) about 2016 is the decline in turnout that occurred between 2008 and 2012. Obama’s support dropped by 3.6 million votes between his election and his re-election. The Republican ticket gained only 900,000 votes over the same four years. Absenteeism was most marked among younger voters and Latinos.

What saved Obama was the loyalty and commitment of African Americans: their participation actually increased between 2008 and 2012—and it was their ballots that provided the president with his margin of victory. If they should feel uninspired in 2016, the Democratic nominee is likely doomed. Democrats will want to do everything they can to rev up African American excitement and energy.
Such as for example, nominating somebody like Eric Holder, who might welcome his nomination with a fiery statement about voting rights, affirmative action, and Black Lives Matter. Republicans would of course go wild, denying him a hearing … and Democrats would gain a bloody shirt to wave in November. Emancipated from worrying about the best candidate for the bench, they could instead use the nomination to elect their candidate to the Oval Office.

The point I’m trying to make here is not that the Senate should do this or that, but that whatever it does, replacing Scalia in the current polarized atmosphere is going to tear our already frayed bonds even worse. How can anyone who cares about the country look forward to what’s to come? The result of the confirmation battle, whatever side wins, will be simply this: that we will hate each other even more across partisan lines.

It is, of course, bizarre that it has come to this for the nation: that the nomination of a Supreme Court justice could inspire such passions. But that’s because of the role the Court has taken in the culture war. This is the poisoned fruit of what Ted Kennedy and his Senate Democratic colleagues did to Robert Bork. And this is also the poisoned fruit of the culture-war results-oriented jurisprudence of the Court — especially Reagan appointee Anthony Kennedy — on abortion and same-sex marriage. It fell to Scalia, over and over again, to reveal the partisan emptiness of these rulings, and therefore how nakedly political the Court had become on defending the Sexual Revolution at all costs.

It was Scalia’s scalding, mocking phrase — “the sweet mystery of life” [2] — that revealed the vacuity of Kennedy’s reasoning in the majority Planned Parenthood vs. Casey opinion reaffirming Roe. The logic of that single fateful decision, which defined liberty as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” has been the foundation upon which other key decisions in advancing the constitutionalization of the Sexual Revolution were built. Scalia repeatedly pointed this out — that is, showed with prophetic clarity and conviction where this was taking us. In his lacerating 2003 dissent in Lawrence vs. Texas [3], which overturned sodomy laws, Scalia demonstrated that the Court had destroyed the basis for any so-called “morals laws” governing sexual conduct. He pointed out that he was not defending the Texas sodomy law in itself, but only the principle that states have a right to pass laws like it. And he said, most memorably, that the majority opinion’s assurance that the holding in Lawrence would not mandate gay marriage was worthless (“Don’t you believe it”).

And he was right. Scalia said that the Court had ceased to be an impartial observer, and had taken sides in the culture war. The Court had become inappropriately political. Mind you, the Court’s decisions inevitably have political consequences. This is unavoidable. Scalia’s point is that on questions having to do with what you might call sexual liberty, the Court had usurped the role of the legislature, and done so on specious legal grounds.

Scalia’s death hits conservatives very hard because he was, in some sense, a restraining force. As Molly Ball points out [4], Scalia, an ardently traditional Catholic, did not always come down in his decisions on the side that pleased religious believers. Nevertheless, as a general matter, Scalia’s death hits social and religious conservatives with particular intensity because we know that the deck is stacked against us on the Court — and that the stakes in this post-Christian society could not be higher.

What’s ironic about this, obviously, is that Scalia usually was on the losing side of the cases that mattered most to us social conservatives. Elliot Milco captures what Scalia meant to us philosophically and, well, emotionally [5]. Milco recalls Scalia’s words in his Windsor dissent (Windsor was the decision that struck down the federal Defense of Marriage Act), in which Scalia lacerated the Court majority for labeling those who hold to the traditional view of marriage as hostes humani generis — enemies of the human race. (You will remember that the majority opinion held that the only reasons to defend traditional marriage were rooted in bigotry). Milco writes:

Those of us who have run the liberal academic gauntlet knew, in 2013, what Scalia meant in Windsor. We understood what it meant to be labeled hostes humani generis. It meant to be deprived of the right to voice your opinion in the public square; to be excluded on principle from the main stream of civil discourse. To be told that your moral universe was anathema to the political foundations of a free society.

Antonin Scalia was a hero to me, as he was to thousands, perhaps millions of conservative Americans. He was brilliant. He was morally engaged. His prose sparkled. He was the great champion of the Right, and he could not be silenced or voted out, no matter how much the press despised him. While his enemies pushed relentlessly to have their views enshrined as fundamental principles of free society, Scalia fought to keep the moral question open for debate, to maintain the possibility of reasonable dissent, because he believed that in a fair fight we could still prevail. He was the mighty rearguard in our long and slow defeat.

That’s it. That’s it exactly. We know we’re losing, and that we are going to lose. But there was something heroic in knowing that the wiser man was standing there in the arena telling his colleagues on the Court, and indeed the entire nation, exactly what they were doing. The cause may have been lost — and on this, Scalia had this Court’s number from virtually the beginning — but with Scalia on the Court, we marched into exile with our heads held high, knowing that the stronger army won, but not the better one.

In an emotional sense, for me, Scalia functioned as a kind of keystone holding up the crumbling arc of the Republic. I know: he lost these morally significant cases having to do with the dignity of life and the meaning of marriage, even though he did not fight them on moral grounds, but on legal, democratic ones. And yes, I know that Scalia was himself no kind of unifying figure that keeps the entire structure from falling down, as a keystone does. What I’m trying to convey is what it feels like to experience his loss from the point of view of a religious and social conservative. As I said, there was something of a restraining force about him — maybe by the power of his prose and his intellect, and the strength of his conviction. In any case, the passions that will now come roaring forward in the fight to replace him will do damage that we are not well suited to absorb. To have him pass from the scene at a time when the Democrats are prepared to drive traditional religious believers from the public square, and when the Republicans are melting down, is an extremely bad sign. Again, David Frum [1], this time on the repulsive spectacle of the GOP debate on the day Scalia died:

On Twitter, I compared the night to a horrible Thanksgiving at which one too many bottles of wine is opened, and the family members begin shouting what they really think of each other. But in retrospect the evening was too ominous for even so bitter a joke.

For a decade and a half, Republicans have stifled internal debates about the George W. Bush presidency. They have preserved a more or less common front, by the more or less agreed upon device of not looking backward, not talking candidly, and focusing all their accumulated anger on the figure of Obama. The Trump candidacy has smashed all those coping mechanisms. Everything that was suppressed has been exposed, everything that went unsaid is being shouted aloud—and all before a jeering live audience, as angry itself as any of the angry men on the platform. Is this a functional political party? Is this an organization readying itself to govern? Or is it one more—most spectacular—show of self-evisceration by a party that has been bleeding on the inside for a decade and longer?

I am grateful to Donald Trump for forcing the Republican Party to confront the legacies of the Bush presidency, especially on Iraq and foreign policy, but also on its collaboration on the globalist project of hollowing out middle America. But Trump is a demagogue and a tyrant-in-waiting, and no degree of natural disgust with what the Republican Party has become can obviate that fact. Had the GOP had these discussions before now, they might have avoided the Trump phenomenon. But they didn’t, and now they can’t stop it. Ross Douthat tweeted over the weekend:

That’s true, and I would add that it’s hard to escape the feeling that this year is an ending, of some sort, for America as we’ve known it. This is why my gut reaction to Scalia’s death is to fear for my country in a way I have not since 9/11. The fight to replace Scalia, no matter which president nominates that candidate, is going to cause us to remember the Bork confirmation hearings as a gathering of the Garden Club board to work out the menu for spring tea. We are going to emerge from that Gettysburg bloodied, maimed, and full of passionate intensity, with one side or the other holding the nation’s supreme legal institution in even greater contempt.

This is going to happen for reasons that the Prophet Antonin Scalia warned us about again and again. And this is going to happen for reasons that the Prophet Alasdair MacIntyre warned us about. The United States, I fear, is about to live out a judgment.

Finally, remember this exchange from an interview Scalia had with a writer for New York magazine [7]:

Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

You watch: we are on the verge of seeing Scalia vindicated, again.

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109 Comments To "Scalia & One Nation"

#1 Comment By Ben H On February 16, 2016 @ 9:49 am

Scalia’s a loss because he was a Great Man in a country with few and I’m being generous. The Supreme Court is also a pretty mediocre institution historically. You can always count on it to institutionalize each generations’ crimes.

#2 Comment By Elijah On February 16, 2016 @ 10:14 am

My dear Gretchen you are in a tizzy. The answer to your first question is – off the top of my head – 2007. The answer to your second question – even though it has nothing to do with the subject at hand – was under Tip O’Neill.

The rest of your rant has nothing to do with the topic at hand. The Democrats may have all sorts of reasons to complain about GOP obstructionism, but when they do so in reference to judicial nominees, they are complaining about a monster they themselves suckled.

#3 Comment By Siarlys Jenkins On February 16, 2016 @ 12:01 pm

But when the Constitution was first drafted, slavery was still legal, industrial capitalism did not exist, and most of the technologies and forms of life that distinguish us from the past were inconceivable.

The former was corrected only by constitutional amendment. Nothing less could have banned slavery in all states. The latter is easily accommodated by the original language… as industrial capitalism grew, generating combines too large for any state to effectively stand up to, it made commerce almost entirely interstate.

#4 Comment By Loudon is a Fool On February 16, 2016 @ 12:35 pm

The key question in Scalia’s legacy relates to what role the Court plays in protecting certain disliked minorities against majoritarian policies aimed at disadvantaging them. Notably, we generally see actions taken against such minorities because they are perceived not to live up to certain Christian moral precepts.

Is this accurate? Outside of speech, Scalia was pretty happy to allow states to retain their traditional police powers. That’s why Employment Division v. Smith was decided in a manner that reduced religious liberty (that plus drugs). And on the free speech front Scalia even defended crush videos.

No one is more disliked in contemporary society than the small minority of racists. Would you support rolling back civil rights laws to protect “certain disliked minorities against majoritarian policies aimed at disadvantaging them”?

#5 Comment By Calvin On February 16, 2016 @ 1:16 pm

My respect for the supposed intellectual bigness of Antonin Scalia pretty much hit zero between his Citizen’s United ruling and the gutting of the Voting Rights Act. Unelected judges overturning the will of the people indeed. Scalia was like most people, and applied his philosophies as they fit his own political preferences. I met Justice Scalia, and while yes, he was very, very smart, that doesn’t change that he was altogether inconsistent in his application of originalist intent.

And as a random note, Robert Bork actually received a vote in the United States Senate. They voted no – they did not say that under no circumstances would they even consider a nomination from Reagan. I’m sick of this comparison being made, because it is not apt. If the Republican Senate wants to vote down whomever Obama nominates then fine, it is the prerogative of the Senate to do so. But to refuse to even consider a nominee is simply an extension of the mindless obstructionism the GOP has exhibited for the past 7 years, and part of why the Democrats would have to nominate the Devil himself before I’d ever consider voting for a Republican for national office. They’re under some delusion that they no longer have to do their job just because they didn’t win the White House, and to hell with whatever the people voted for in the last election. Obama won 4 years of presidency, but whatever, we’ll just call him a lame duck 9 months early and refuse to do parts of our job. I hope it backfires on them as spectacularly as most of their other double or nothing bets, and that President Hillary nominates an absolute flaming liberal after they lose the Senate. It will be no less than they deserve.

And the Supreme Court has always been involved in the “Culture War” Rod, in all the various guises that has taken throughout the nation’s history. Dred Scott and Hague v CIO were no less a cultural battle than Obergefell or Roe v Wade.

#6 Comment By William Dalton On February 16, 2016 @ 8:37 pm

More on the topic of profound Christianity of Antonin Scalia. It really was remarkable for a man of such prominence in secular America today.

A friend of mine preached at the funeral of Justice Lewis Powell in Richmond in 1998. In attendance were all the members of the Supreme Court, as well as many other dignitaries. Today he posted a letter he received after conducting that service. It was from Justice Scalia. This is it:

Supreme Court of the United States
Washington, D. C. 20543

CHAMBERS OF
JUSTICE ANTONIN SCALIA

September 1, 1998

Dr. James C. Goodloe
Grace Covenant Presbyterian Church
1627 Monument Avenue
Richmond, Virginia 23220-2925

Dear Dr. Goodloe:

I looked for you unsuccessfully at the luncheon following the funeral yesterday. I wanted to tell you how reverent and inspiring I found the service that you conducted.

In my aging years, I have attended so many funerals of prominent people that I consider myself a connoisseur of the genre. When the deceased and his family are nonbelievers, of course, there is not much to be said except praise for the departed who is no more. But even in Christian services conducted for deceased Christians , I am surprised at how often eulogy is the centerpiece of the service, rather than (as it was in your church) the Resurrection of Christ, and the eternal life which follows from that. I am told that, in Roman Catholic canon law, encomiums at funeral Masses are not permitted—though if that is the rule, I have never seen it observed except in the breach. I have always thought there is much to be said for such a prohibition, not only because it spares from embarrassment or dissembling those of us about whom little good can truthfully be said, but also because, even when the deceased was an admirable person—indeed, especially when the deceased was an admirable person—praise for his virtues can cause us to forget that we are praying for, and giving thanks for, God’s inexplicable mercy to a sinner. (My goodness, that seems more like a Presbyterian thought than a Catholic one!)

Perhaps the clergymen who conduct relatively secular services are moved by a desire not to offend the nonbelievers in attendance—whose numbers tend to increase in proportion to the prominence of the deceased. What a great mistake. Weddings and funerals (but especially funerals) are the principal occasions left in modern America when you can preach the Good News not just to the faithful, but to those who have never really heard it.

Many thanks, Dr. Goodloe, for a service that did honor to Lewis and homage to God. It was a privilege to sit with your congregation. Best regards.

Sincerely,

Antonin Scalia

#7 Comment By Dan L On February 16, 2016 @ 11:12 pm

I’m late to the game here, but I wanted to share something as I think Rod and I share a fear that is pretty interesting, considering how much we disagree about Scalia. Frankly, I think the next 10-15 years for the Supreme Court are going to get uglier by the day. Say the Republicans succeed in the plan to not give a nomination to Obama and a close election follows. What motivation does the out of power party have to confirm anyone to SCOTUS? Someone could come up with a “No nominee can be confirmed in the first two years of a presidency, as it is too important of a decision” rule, which is equally as arbitrary and self serving as the current argument being made by Senators, and suddenly we would be 3 years without naming anyone. And it could go further, why assume someone would ever get confirmed? The out party is essentially accepting defeat by allowing a vote. If they have the power to avoid it, why not refuse to accept defeat, claim the President has no real mandate and hold the stalemate? It’s not just ugly nomination fights I worry about, it is a functioning judicial nomination process at all. I mentioned 10-15 years because of the number of Supreme Court justices in their Eighties. At some point they will retire or die. So even if this round nomination functions, what’s to say enough Senators get mad the next time, or the next. It’s entirely conceivable to me that in 2030, there will be 6 Supreme Court justices, and both parties completely unwilling to confirm anyone from the other side.

[NFR: Thanks for this. I agree with you — and I think the symbolic importance of Scalia himself (as distinct from any other justice on the Court) is a factor. When I said I was afraid for the country, it was partly because Scalia was such a powerful intellectual figure anchoring conservatism on the Court, and it was partly because he was probably the only conservative left that nearly all people on the Right adored. But it was also, and probably mostly, because of what is likely to come next. That is to say, you and I worry about the same thing. — RD]

#8 Comment By sps On February 17, 2016 @ 12:23 am

It seems like the Scalia we’re talking about was the one from 1987 when he came onto the court to 2005. After 2005, when he was not named Chief Justice, he ceased to try and persuade either colleagues or the public to what he believed in and isolated himself. Some may call it bravery in the face of a new world order, others may call it preaching to the choir. But whatever it was foreshadowed then turn of conservative rhetoric towards polemics. If indeed something has passed besides the physical, then it happened a decade ago, not now.

#9 Comment By M. F. Bonner On February 17, 2016 @ 8:37 am

” When have Democrats ever refused to consider a Republican nomination before they even knew who the nominee is? When has a Democratic Congress refused to even look at a Republican president’s budget before refusing to consider it? When have Democratic congressional leaders met on the night of a Republican president’s inauguration to make plans to obstruct every action of that president to make sure he doesn’t win a second term? When have all the Democratic senators sent a letter to an enemy nation with whom the Republican administration is negotiating, to say they would not support any agreement, as Sen. Tom Cotton and ALL the Republican senators did to the government of Iran during Obama’s nuclear treaty negotiations? Someone is remarkably ignorant, but that person is not Dancer Girl.”

All good questions. One correction. If I recall, several Republican Senators either showed the excellent judgment to not sign onto the letter or, at least had the good fortune to avoid signing it due to some other circumstances.