Home National Politics Three More Post-Scalia Thoughts

Three More Post-Scalia Thoughts


by Andy Schmookler


It is important to me to be fair, to give credit where credit is due. Denying someone’s virtues just because they hold beliefs different from mine is something I strive not to do. So it is in that context that I find myself wondering about my judgment of the late Antonin Scalia.

I have believed, and I have written, that Scalia was a hypocrite and a fraud. He claimed to be an “originalist” in his approach to the Constitution, but what I thought I saw was a man determined to advance a corporatist and conservative agenda—using an originalist approach when that served his agenda, and ignoring it when it didn’t.

How does a genuine originalist find in the Constitution the idea that corporations are persons—an idea on which the terrible Citizens United  decision was premised? And in Heller – the decision in which Scalia and his conservative allies found the Second Amendment to confer onto individuals a right to firearms altogether unrelated to any “regulated militia” (which our founders, for some reason, wasted words mentioning in the amendment). And so this supposed originalist came up with an interpretation beloved on the right but which had been deemed “a fraud” by the Republican-appointed former Chief Justice, Warren Berger.

Yet here we have Scalia’s colleagues paying tribute to the departed, including the liberal-leaning Justice Breyer describing Scalia as a man of “integrity,” and Ruth Bader Ginsburg saying that he was altogether shaped by “an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards.”

His colleagues knew him far better than I. They should know more deeply than I what a “commitment to the Constitution of the United States” would look like.

So what kind of man was Scalia? Have I been guilty of being unfair to a man of principle? Or are his colleagues exemplifying how people prettify the picture of the person who just died? Or what?


There’s a Sufi story of a religious scholar who sat in his hut studying the sacred texts while an annoying fly buzzed about him. The scholar ignored the fly, which was not really just a fly but was an evil djinee. He ignored how day by day, that fly got bigger and bigger, ever more menacing. Finally, the fly is as big as a man and it kills the man as it bursts through the walls of the hut and flies out into the world.

That story came to my mind these past few days as the Republicans – without even allowing a decent interval to pass after the arrival of the news of Justice Scalia – told President Obama he should not dare to try to name a successor to fill the vacancy on the Court. They had no real justification for this pledge to obstruct the process for which the Constitution calls in this situation—no justification other than that they see that a great deal of power is at stake in whether the balance of the Court is shifted, and that power is all they care about.

The connection with the Sufi story is this: the Republicans’ refusal to acknowledge the President’s legitimate constitutional authority in the matter of Scalia’s replacement is but a continuation of their years-long effort to obstruct, in every way possible, Obama’s performance of his job. And these Republicans would never dare to play this game with the Supreme Court if they hadn’t been allowed to get away with it all this while.

This has been an ongoing travesty for seven years, and it should have been made the central political issue of the times, until the shaming took such a toll that the Republicans backed off and played the role of a normal opposition party. The American people twice hired Barack Obama to do an important job for them, and the Republicans’ refusal to respect the will of the people would have been made into a bludgeon with which to punish them.

Instead, this fly has been allowed to buzz around the national capital, without the kind of condemnation from the bully pulpit that it deserves. As a result, the Republicans had not even a moment of hesitation about possibly creating what some are calling a “constitutional crisis” by trying to steal from the president his rightful authority in the wake of Scalia’s death.

Better to have stopped them at the outset.


People who likely know more than I about these things seem all to believe that the abortion case from Texas will now result in a 4-4 tie.

The tie would leave in place the federal appeals court judgment upholding the Texas laws that require abortion clinics to have hospital admission privileges within 30 miles. (The law has already resulted in the closure of many of Texas’s abortion clinics.) But the law would also leave in place other appeals court decisions that rule that such requirements impose an “undue burden” on a woman’s right to an abortion.

For that reason, it is generally said that the pro-choice side has dodged a bullet, since Scalia’s presence might have enabled the usual Conservative Five to use this case to do substantial damage to the rights conferred by Roe v. Wade.

But I wonder.

The conservative four may not be pro-choice, but they are pro-Court. The Texas law here, like the infamous proposal in Virginia to require a medically unnecessary “transvaginal ultrasound,” looks to have as its purpose the sabotaging of a right that was granted by the Supreme Court. Arguably, it is one thing to challenge a prior Supreme Court judgment in the courts, but quite another to simply try to sabotage an established right through legislation.

So I wonder: might not the one of the four remaining conservative justices decide that it is more important here to defend the Court’s authority rather than to ratify an anti-abortion measure that disrespects what the Court has decreed to be the law of the land?