Supreme Court Justice Antonin Scalia was found dead Saturday at a luxury resort in West Texas. He apparently died from natural causes. The news comes as a shock. Scalia, 79, had been as obnoxious as ever in recent years and showed no signs of slowing down. His passing throws the future direction of a narrowly but sharply divided Supreme Court into doubt just as a presidential election year begins to heat up. While Scalia’s death (like any person’s) is a personal tragedy for his family and friends, there’s no reason to be quiet when the right wing rushes in the coming days to lionize Scalia and by extension his judicial legacy.
Antonin Scalia was quite simply a narrow-minded, mean-spirited man who propagated an intellectually absurd judicial theory known as “originalism.” It allows reactionary jurists like himself to toss out decades of precedent and rewrite the Constitution according to their own whims. Think of Citizens United v. Federal Election Commission, Bush v. Gore, Shelby County v. Holder, District of Columbia v. Heller and many other cases in which Scalia not only provided a decisive fifth conservative vote but his philosophy offered a paper-thin rationale for what the Court was doing. There are few public figures I can think of in my lifetime who have done more harm to this country.
In Citizens United, Scalia and four other Republican-appointed justices overturned a century’s worth of precedent that established some restraints over corporate financing of political campaigns. In Citizens United court majority argued that the 1st amendment free speech rights of corporations were being violated. How would anyone know what the authors of the Constitution thought on this matter when the modern corporation did not even exist in 1787? Who knows but Scalia and company found a way to the decision they wanted to make.
In Heller, Scalia rearranged the 2nd Amendment to sideline the first 13 words, which speak of the need for “a well-regulated militia”, to place all the emphasis on the second part which speaks of the “right to bear arms.”
“So much,” one observer noted at the time, “for Scalia’s much-vaunted ‘originalism’, which advocates reading the Constitution as it would have been understood at the time of the Founding.”
That Scalia’s originalism has migrated from the fringes of judicial theory to the center is a telling sign of how far this country has moved to the right in the past 30 years. The sooner we understand Scalia’s legacy, the more quickly we can begin to undo it and return to an understanding of the Constitution not as an Old Testament tablet etched in stone with one meaning for all time but as a document that enunciates broad principles to be interpreted in the light of a dynamic and constantly evolving society.