Tuesday, February 16, 2016

Scalia Links

Did Scalia Really Have an Outsized Influence on the Court?
February 15, 2016 
In response to [Corey Robin's] bolded question [Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen?], I would just say “nothing.” Whatever the merits of this Stanley Fish-like “liberals refuse to stand up for themselves” argument in other contexts, in the context of the Supreme Court liberals stood up to Scalia perfectly well, and approaching his histrionics with give-’em-enough-rope dispassion seems entirely appropriate. I honestly have no idea how Scalia’s talk-radio tone is really materially relevant to anything. As I said at the time, my fundamental disagreement is that I think Scalia’s “dominance” of the Court has been vastly overrated. When has he ever persuaded anyone who didn’t already agree with him? I don’t know whether Scalia’s insulting language caused it, but O’Connor moved further from Scalia, not closer, over time. From Casey to King, his Republican colleagues have never let the possibility of one of his BLISTERING dissents stop them from doing something they wanted to do. I would also say that, as a matter of rhetorical strategy, to the very limited extent that it matters the calm, rational tone represented by Roberts’s opinion for the Court in King or Ginsburg’s dissent in Shelby County is more effective than Scalia’s increasingly pathetic ranting. 
I’d say something similar about the alleged influence of Scalia’s originalism. First of all, grand theory does pretty much no work in deciding cases. And second, I don’t really see that Scalia has made it all that much more important. George W. Bush’s two appointees have been notably uninterested in grand theory (and, for the reasons stated above, Alito is a scarier operative than Scalia ever was.) It’s true that both sides in Hellermade arguments that largely rested on history, but this is nothing new. Supreme Court opinions have been citing historical factoids when they can help and ignoring them when they don’t for time out of mind. The fact that Heller broke down on a party-line vote anyway demonstrates that which grand theory (if any) Supreme Court opinions use to justify their conclusions just isn’t very important. And to the limited extent that it matters, Thomas, not Scalia, is the justice who cares most about originalism and has done the most to advance it.
Scalia: The Donald Trump of the Supreme Court
Corey Robin
In the coming days, the retrospectives on Scalia’s career and predictions of what is to come will be many; they’ve  already  begun. 
But for me Scalia is a figure of neither the past nor the future but of the present.If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia. Scalia is the id, ego, and super-ego of modern conservatism. He was as outrageous in his rhetoric (his unvarying response to any challenge to Bush v. Gore was “Get over it!”) as he was cruel in his comportment. Sandra Day O’Connor was the frequent object of his taunts. Hardly an opinion of hers would go by without Scalia calling it—and by implication, her—stupid. “Oh, that’s just Nino,” she’d sigh helplessly in response. Even Clarence Thomas was forced to note drily, “He loves killing unarmed animals.” He was a pig and a thug. (Sunstein, by contrast, believes “he was a great man, and a deeply good one.”) And he was obsessed, as his dissent in PGA Tour v. Casey Martin shows, with winners and losers. They were the alpha and omega of his social vision. He was the Donald Trump of the Supreme Court. 
And the second most misunderstood judge of the Supreme Court, as I argued in a lengthy profile of Scalia, which originally appeared in the London Review of Books and which I revised extensively for one of my chapters in The Reactionary Mind. I reproduced that chapter in four parts on my blog. [More at the link]
Gawker: Antonin Scalia (1936-2016)
Antonin Scalia died a failure. He failed at the thing he liked to claim he was doing, and he failed at the thing he genuinely was trying to do. Both failures are captured by the furious and immediate response to his death, as Republican members of the Senate hastily announced that they will preemptively withhold their advice or consent from whoever the President of the United States might nominate to fill the vacancy. 
This is a strange way to honor a man who insisted that his loyalty was always to the Constitution. He was, he said, a humble lawyer, obedient to the texts he was given. He followed the law where it led. To do otherwise was a “threat to American democracy,” as he wrote in his dissent in Obergefell v. Hodges, denouncing his colleagues on the Supreme Court for having denied the people of the states the right to pass laws against gay marriage. 
The moment he died, his Republican colleagues in the legislative branch stopped pretending he was anything else. All that was left of his philosophy was: How do we get a win out of this? 
That was Scalia’s first failure. His second failure was visible in the Senators’ desperation: Having abandoned judicial persuasion for naked power politics, he never got the power he wanted. He grew more pugnacious and less influential. In the end he was left to fume on the sidelines, writing yet another raging dissent, as Chief Justice John Roberts, a loyal but pragmatic member of the judicial conservative movement, voted to uphold the Affordable Care Act. 
The book is closed on the Scalia wing of the court. It peaked at four solid votes, with the fickle Anthony Kennedy flitting in and out of the majority. Now the Republicans are threatening a constitutional crisis in the hopes of even getting it back to four. There is Antonin Scalia’s legacy. He aimed low, and he missed. [My bold]
Finally, this revealing New Yorker interview from 2013 tells me all I care to know about this man...

In Conversation: Antonin Scalia
On the eve of a new Supreme Court session, the firebrand justice discusses gay rights and media echo chambers, Seinfeld and the Devil, and how much he cares about his intellectual legacy (“I don’t”).
By Jennifer Senior
Published Oct 6, 2013

What’s your media diet? Where do you get your news?Well, we get newspapers in the morning. 
“We” meaning the justices?No! Maureen and I 
Oh, you and your wife …I usually skim them. We just get The Wall Street Journal and the WashingtonTimes. We used to get the Washington Post, but it just … went too far for me. I couldn’t handle it anymore. 
What tipped you over the edge?It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly,shrilly liberal. 
So no New York Times, either?No New York Times, no Post. 
And do you look at anything online?I get most of my news, probably, driving back and forth to work, on the radio. 
Not NPR?
Sometimes NPR. But not usually. 
Talk guys?Talk guys, usually. 
Do you have a favorite?You know who my favorite is? My good friend Bill Bennett. He’s off the air by the time I’m driving in, but I listen to him sometimes when I’m shaving. He has a wonderful talk show. It’s very thoughtful. He has good callers. I think they keep off stupid people. 
That’s what producers get paid for.That’s what’s wrong with those talk shows. 
Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
It’s childish.

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