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By Tom Cushing

Tending 'Nino

Uploaded: Feb 15, 2016

Mr. Justice Scalia had barely reached room temperature when a battle he’d have enjoyed broke out all around his corpse. It seems a shame that he’ll miss it.

He was a jurist who embodied the conservative movement – principled to the end, primarily when those precepts served his politics. He rarely conceded a point of jurisprudence to build a coalition, preferring to go down in flaming rhetoric, rather than give-in to another intellect or value system.

It should be noted, here, that judicial conservatism and liberality embody approaches to the world that tend to keep company with those same terms in political usage. Conservatives honor tradition, in the form of legal precedent established in prior cases. They are differentially reluctant to overturn rules that have served the country for some period of time.

Conservatives have also seen the judicial role as limited to interpretation, and are loathe to “legislate from the Bench.” Finally, they tend toward reluctance to wade into controversies that can be avoided – hence the term “activist” vs. more restrained judicial temperaments. This last point has become less true in aggressive contemporary conservatism, in which the ends justify any means, including judicial activism of the ‘right’ variety, but more about that later. Their approach provides stability and predictability to the rule of law.

Judicial liberals, on the other hand, tend to see law as a tool of social progress, and are generally more willing to overturn precedental rules that may have outlived their usefulness. They see law-making as an evolving process in which they participate; they interpret the Constitution as a living document, and they are less leery of judges stepping into the breech to solve problems. Liberals are unafraid to use Constitutional guarantees like Equal Protection of the Law as a tool to protect the expectations of minorities that will never command a majority of the voting public, and who may thus suffer under the tyranny of an under-principled electorate.

As Oliver Wendell Holmes Jr., the ‘great dissenter’ of his day because many of his minority opinions later commanded the majority, opined (quote truncated): “The law is indeed the government of the living by the dead. The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.” Holmes rejected the idea of timeless, so-called ‘natural’ law, believing instead that ‘the life of the law is experience.’ Holmes is hard to categorize in contemporary terms, but those are pretty clearly liberal sentiments.

Liberals believe it’s more important to ‘get it right’ in terms of their view of what constitutes justice, than to stand on tradition. Their approach provides the means by which the rule of law is updated to current social conditions, and remains relevant to society. There’s a constant tug-and-pull between tradition and evolution – it’s “the Warren Court” vs. “the Roberts Court” in a cage death-match that tends toward balance over time. .

Antonin (“Nino”) Scalia was the most classic exemplar of judicial conservatism. Indeed, more than just a vehicle of stability, he often said he viewed the Constitution as a “dead” document. He meant that current judges ought to view it through the eyes of its draftsmen of the late 1700s, or presumably whenever Amendments were ratified (the first ten of which – the Bill of Rights – were enacted simultaneously with the underlying document; the 13th outlawing slavery and the 14th regarding due process and equal protection followed soon after the Civil War).

It’s called the “originalist” approach to constitutional law, and seems to assume that most wisdom and progress had been achieved by the time the country was founded – you know, when only white male property owners could vote, blacks were enslaved and women were chattel. It is the ultimate in the governing of the living by the dead.

Mr. Scalia will be eulogized as a stalwart, a gifted writer and a combative champion of his ideas -- all of which is true. Indeed, I thought the Prez did a much more thorough job of appreciating him in the White House statement than did his philosophical allies in their headlong rush to deny Mr. Obama his constitutional duty and prerogative.

My problem is that I think the originalist view is absurd on the merits, politically convenient, and allows its adherents to shirk their duty to good in the world – to fail to consider the real, contemporary implications of their rulings on actual living people in a refrain of “not my job – it’s what the Constitution meant 220 years ago.” I think it IS their job on the Court, and that Mr. Scalia’s rulings have caused untold suffering in service to that status quo (very) ante. I would point to the Heller opinion that invalidated many of the nation’s gun control laws as only one case in-point.

My ‘political convenience’ argument is based on the fact that his late-career dissents became increasingly strident, intemperate and personally insulting to other Justices -- especially when the majority held in favor of social rights he opposed. He characterized contrary arguments as ‘argle-bargle’ or ‘applesauce,’ and in the Obergefell same sex marriage case he disparaged a majority opinion, saying:

“The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law,” and concluding that Kennedy’s decision “diminish[ed this Court’s reputation for clear thinking and sober analysis.” So much for debating ideas.

These were angry rants -- not principled arguments, and based on outcomes that he found personally objectionable. I don’t think they will have the staying power of Mr. Holmes’ writings, but it does keep him very much in-step with the modern conservative parade.

So, what now? The Republicans have been very quick to stake their opposition to any Obama appointment, which is to be expected – even if they correctly recognize that the best, limited leverage they have is to convince Mr. Obama to appoint a more ‘moderate’ Justice than he might prefer. Their recalcitrance is, of course, utterly inconsistent with their views as expressed by Mitch McConnell (at 3:29 forward) late in the Bush II second term.

They also found it possible to approve early nominee front-runner Sri Srinavasan 97-0 only three years ago (but that was then, on the actual merits). The GOP simply does.not.care about logic, or consistency, or appearances, as they strain to hold back the tide of a dawning Progressive era. Folks who’ll shut down the government over budget squabbles have already shown their cards – they will play out every losing hand.

So, rather than bow to the inevitability that Mr. Scalia’s passing dooms most of the cases they were hoping might go their way via 5-4 vote (many on appeal from liberal lower courts stacked with Obama appointees), I expect that they’ll forego pressing for a judicial moderate and instead pray fervently for GOP wins in November. It’s more likely that this issue will differentially kite the Democratic turnout in the election, as theoretical Court appointment(s) are now very real, and the Supremes’ future direction does hang in the balance.

I’m guessing that Mr. Scalia would approve of that GOP course in no uncertain terms, and colorful language.