Shining a light on Scalia and the Supreme Court

Linda Greenhouse, the former New York Times reporter who covered with great acuity the Supreme Court for many years until her recent retirement, shows that acuity once again in an oped in the Times. With precision, subtlety, and seeming detachment, she describes the destructive role of Antonin Scalia and the conservative majority on the court of which he was the most outspoken member.

What especially caught my eye were the following observations:

• “I’ve become increasingly concerned, as my recent columns have suggested, that the conservative majority is permitting the court to become an agent of partisan warfare to an extent that threatens real damage to the institution.” She goes on to mention recent decisions that underscore this point. Among those cited are rulings on President Obama’s deportation-deferral program, executive actions on climate change, and voting rights. Greenhouse also alludes to the University of Texas admissions program that allows race to be a consideration in admissions. Most observers of the court had expected it to rule against that in June.
• “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 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.”
• “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.“

What are we to make of Greenhouse’s observations? First, Scalia was an extremely backward person, whose worldview, if you can believe it, became more mean-spirited and anti-democratic as he became older and deaf to anything outside of his right-wing echo chamber. Age, it is said, moderates people’s views, but that obviously wasn’t the case with Scalia; it only made him more intemperate and closed minded.

They also show that Scalia bent constitutional law to fit his right wing political agenda. Originalism, which he embraced and interpreted to mean that the Constitution is a dead document not to be amended under any conditions, was the rationale for his relentlessly hostile attitude towards popular and legislative efforts to expand democracy and democratic rights.

Finally, Greenhouse’s observations strongly suggest that nothing causes the conservatives on the court – now no longer a majority – more agita than “new rights.”  So much so that the record of the Roberts court already shows that the court’s conservative members are neck deep in all consuming war on the “rights revolution” of the 20th century and early 21st century. That their war has been halted – and maybe permanently –  by Scalia’s unexpected death must be driving them nuts.

Greenhouse doesn’t jump into the fray over who should be Scalia’s replacement, but she does say that the court needs a “reset.” And there seems little doubt where she stands on the nature and direction of that “reset.” Some may expect more from her, but in shining a light on Scalia and the Roberts court, she has acquitted herself quite well.

Now it’s our turn to clarify what the stakes are and what kind of justice fits our times.