On Monday, The New Yorker‘s resident Supreme Court commentator Jeffrey Toobin summarized his thoughts on the late Antonin Scalia’s legacy. Toobin doesn’t pull any punches in his critique:
Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor. The great Justices of the Supreme Court have always looked forward; their words both anticipated and helped shape the nation that the United States was becoming. Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government. Louis Brandeis understood the need for that government to regulate an industrializing economy. Earl Warren saw that segregation was poison in the modern world. Scalia, in contrast, looked backward.
A common cliché calls the Constitution a “living, breathing document.” Behind this phrase is the idea that a concise and aging collection of words must be constantly reexamined and reinterpreted to fit the changing times. Scalia rejected this interpretation, preferring to limit his analysis to the precise content of the Constitution and the intent of its original authors. At times, this approach was exposed as especially silly:
Even Scalia’s ideological allies recognized the folly of trying to divine the ‘intent’ of the authors of the Constitution concerning questions that those bewigged worthies could never have anticipated. During the oral argument of a challenge to a California law that required, among other things, warning labels on violent video games, Justice Samuel Alito interrupted Scalia’s harangue of a lawyer by quipping, ‘I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?’
Scalia called his brand of jurisprudence “originalism.” Toobin (rightly) calls it regressive:
Like Nick Carraway, Scalia ‘wanted the world to be in uniform and at a sort of moral attention forever.’ The world didn’t coöperate. Scalia won a great deal more than he lost, and he and his allies succeeded in transforming American politics into a cash bazaar, with seats all but put up for bidding. But even though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes—thanks first to O’Connor and then to Kennedy. Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not. (These positions are contingent, of course, and cases this year may weaken the Court’s resolve.) For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, on the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past.
Soon (or eventually, at least), a new Justice will be seated on the Court. I can only hope that she or he will value the open and kinetic quality of our Constitution. Progress depends on it.