The sudden death of Supreme Court Justice Antonin Scalia is understandably a matter of great moment in American history. There is no doubt that as one of the longest serving Supreme Court justices ever, he wielded immense influence on the direction of the Court and hence impacted on the critical and key issues of modern America. But Scalia’s influence was not neutral and his impact was certainly not benign. His legacy has been the subject of debate for years and with his demise it is fair and just to assess his entire body of work as a jurist.
Given his demi-godlike status on the right wing of the right wing, it should come as no surprise that the Scalia eulogies give him credit for everything but the rising of the sun. There is no reason to doubt that he was a dedicated family man and that he loved his wife and nine children and 28 grandchildren dearly. And there is no reason to doubt that those who knew him personally (including fellow Supreme Court justices with whom he profoundly disagreed) found him to be gregarious, gracious and full of personal grace.
However, Justice Scalia’s legacy cannot be assessed in terms of his gregarious, and gracious private persona. During his thirty years on the Supreme Court he wreaked havoc on the people of the United States. The real damage that he caused to this country is almost incomprehensible and that he was able to so publicly flaunt his misdeeds and calamitous accomplishments is a sad and meager inheritance that he has bequeathed to the people of this country.
Justice Scalia’s espoused “originalism”, essentially that the Constitution’s meaning should be fixed at the time of enactment, i.e. 1787. In other words, every word, clause and sentence written and ratified by a group comprised entirely of white men (many of whom were slave owners) and in the absence of any women or any persons who could be considered working class (or even middle class), should be taken literally – word for word. Even Pope Francis does not treat the Bible that literally, but Scalia’s fundamentalist approach became as widely held as that of the religious fundamentalists who believe that Adam and Eve actually walked with the dinosaurs.
Consider that in 1787 there was no internet, women could not vote, black Americans had no rights, there were 4 million people living in thirteen states and the average American life expectancy was 38 years. In 2015 there are over 300 million people living in this country with a life expectancy of 78 years.
In 2015 black American, women and descendants of immigrants from every country on this planet enjoy the rights of citizenship in spite of continued and sustained efforts to deny and restrict those rights. Social Security, free public school education, the election of senators by the direct vote of the people and Medicaid were inconceivable to even the most progressive of the framers of the Constitution. The electricity, automobiles and scores of life changing technological advances have resulted in a country that could not possibly have been considered by the bewigged white men in Philadelphia in the summer of 1787 (with Benjamin Franklin and Alexander Hamilton being possible exceptions).
Indeed, the only reason that the Constitution has continued as the governing document for over two centuries is because it has been subject to interpretation. If, as Justice Scalia contends, genius was in that room in Philadelphia, then it was genius in providing the document with flexibility and empowering the elected representatives and jurists to interpret it that have ensured its survival, and therefore the survival of the United States itself.
And, by the way, Justice Scalia was more than willing to engage in a veritable orgy of interpretation when he participated in the theft of a presidential election in the Bush v. Gore case, even as his son worked as a partner in one of the law firms that represented George W. Bush.
As a result of this theft of a presidential election that Justice Scalia helped to engineer, President Bush destabilized the planet with misguided wars while presiding over the near collapse of the American and global economies. And there is nothing in the Constitution that sanctions the politically motivated theft of a presidential election, “originalism” notwithstanding.
In the cases of Citizens United v. the Federal Elections Commission and McCullough v. the Federal Elections, employing incredibly tortured interpretation, Justice Scalia helped to legitimize corporate purchase of elections. These cases have empowered the millionaires and billionaires of this country to exert incredible influence over every election in every state, county, city and of course, throughout this nation. And there is nothing in the Constitution that sanctions the empowerment of the wealthy to have undue influence over the political and governmental processes, again, “originalism” notwithstanding.
There are dozens of other cases where the smudged Scalia thumbprint can be found, cases that have profoundly affected the people of America for the worse. The Bush v. Gore, Citizens United and McCullough cases are some of the more egregious examples of the harm caused by Justice Scalia.
Antonin Scalia may rest in peace. Thanks to him, the people of America will not enjoy that blessing.