It was announced Tuesday that Senior Associate Justice Antonin Scalia, who passed away due to natural causes at a luxury resort in Texas on Saturday, will lie in repose in the halls of the Supreme Court this coming Friday. As is traditional, Scalia was honored with the placement of a black wool crepe over his chair and bench, along with black drapery over the doors to the courtroom. These simple, understated gestures by the Supreme Court are the most respectful remembrances of Scalia to have emerged from D.C. since his passing.
Given Scalia’s famously conservative jurisprudence, it may surprise some of our more critical and conservative readers that we aren’t using his death as a cause for celebration. The reason for this is two-fold: First, come on, it isn’t as though we’re so lacking in moral decency that we would speak ill of the dead. Second, no matter how strongly we loathe and detest more than a considerable portion of Scalia’s strict constructionist views of the U.S. Constitution, he was near unparalleled in his brilliance.
Many on the left have long been content to brand Scalia as a backward-thinking imbecile, inflexible in his morals and near-inscrutable in his reasoning; they’re only one-third correct. Although many refuse to acknowledge it, Scalia’s opinions — both majority and dissenting — were always constructed with a nigh-encyclopedic understanding of common law and the Constitution. Were his opinions disagreeable? Barring his consistently individualist interpretations of the Fourth Amendment, sure. Were his opinions — ignoring the clear and present moral arguments against them — easily deconstructed from a legal perspective? Not a chance.
Brilliant though he may have been, we doubt even Mr. Scalia could have foreseen his legacy to American politics would one day help to fuel the political fire surrounding his death. In case anyone missed the memo, 2016 is not only an election year, but it is also the final complete calendar year of Barack Obama’s historic presidency. Considering it is the president’s responsibility to nominate justices to the U.S. Supreme Court, Republicans have whipped themselves into a frenzy in attempting to justify why it will be up to the next president, not Obama, to nominate Scalia’s successor. Alligator favorite Ted Cruz, who not only served as a law clerk to Chief Justice William Rehnquist, but has also lectured on the Supreme Court and argued before it (winning five out of nine cases) should know better than to claim it is not the job of a lame duck president to nominate a U.S. Supreme Court Justice. If any Republicans in D.C. had bothered to ask him, Associate Justice Anthony Kennedy could have told them that, not only is there no precedent for outlawing lame duck presidents from nominating U.S. Supreme Court justices, but also that he himself was nominated by former President Ronald Reagan in 1987 and confirmed in 1988, the final year of Reagan’s presidency.
As President Obama noted in an address last night, this unreasonable and quasi-treasonous rhetoric is the direct consequence of the very political polarization Scalia helped to usher in. Like it or not, the democratic process and the ideals our nation purportedly upholds require thoughtful discussion and no small amount of nuance. While we’re willing to acknowledge Scalia’s remarkable intellectual prowess, we’re not going to rewrite history and claim “nuanced” was an apt descriptor for the man. Like his constructionist philosophy, Scalia was immune to progress and incapable of accommodating dissenting doctrines. In his three decades on the Supreme Court bench, Scalia codified and institutionalized the obstinance and intractable character of America’s hard-right conservative faction. It is simultaneously ironic, tragic and fitting, then, that the very individuals he empowered have been quick to abandon any pretense of mourning or respect, instead using his passing to score a quick political buck: This is Scalia’s legacy.
