The dust has cleared, we have a damaged Supreme Court, and the canonization of celebrity Justice Antonin "Nino" Scalia is official. His greatness is accepted by all sectors of the political spectrum and the media, which would probably have amused him. He might joke about how many friends he acquired by dying. His death put talking heads and politicians of all types under a spell, and they scrupulously avoided even the suggestion of any reservations, fearful of the man even in death and mindful of his powerful living allies. His host at the time of his death was the brilliant but fatally compromised John Poindexter of Iran-contra fame, pardoned by his partner in that crime, Bush 41.
But yes, Nino was a decent law-abiding and friendly man who meant no harm. No one seems to have disliked him much. Good men may do great harm though, and do it with a sense of virtue that distracts criticism and seems to lend righteous substance to their actions. Scalia did this: toppling the voting rights act (2013), opened the way to disenfranchise the poor, a serious attack on something taken for granted for many decades. Conflating the rights of men with those of corporations (Citizens United) was a profound incursion on common sense, going against a long tradition of keeping unlimited money out of politics, and we’re seeing the results as billionaires like Adelson and the Kochs pour money into politics in hopes of buying the presidency. Which is do-able now under the law.
Scalia is generally agreed to have been a lawyer’s lawyer, a strict, effective logic-chopper who specialized in the Constitution as he understood it. An “originalist,” and a clever writer who larded his work with misleading contemporary references that suggested he was in touch with profound cultural changes he ignored in his decisions. He did not grapple very hard with “the history,” as doctors say – what has happened since his favorite document was written. Nor is he very concerned with the effects of his decisions on the nation. And he scrupulously avoided the inconsistencies of the document, many of which existed to enable its acceptance by the states. The Second Amendment is ambiguous, and is responsible for our-of-control small-arms industry. The treatment of slavery is cowardly: is a slave a person or a thing? Never mind, getting Virginia to sign on was the immediate problem.
Neither was Scalia sufficiently concerned with the effects of his decisions on living human beings. He apparently could not imagine awkward specifics such as (for example) the likely existence of a penniless teenage girl and her unwanted child. He was above that, unmoved, breaking eggs as needed to produce his originalist omelet. The on-the-ground reality is simple, though: when the Constitution was written, the family was a solid institution, and greater population was desirable for obvious reasons – much land, few people, few labor-saving devices, plenty of work to go around. Children were needed. Today those children would find no jobs, and of course there is the undiscussed problem of a crowded planet with too many people. The Chinese solution horrified many, but the one-child family probably saved China. For a practicing Roman Catholic this is a difficult and sensitive point. Scalia believed, and expected us to believe, that his personal life and beliefs did not interfere with his legal judgment. This is how logic-choppers think, but not how human beings behave, as a fellow Justice observed.
Similarly, the preservation of our precarious democracy in this century was not an obvious pressing concern to Scalia. Secure himself, he seems not to have considered how fragile our democracy has become, with political parties disintegrating as populists rise from nowhere and money floods the political process. Citizens United conflates corporations with flesh and blood human beings, pours billions into a political process already controlled by multinational corporate lobbies, and drives good people out of politics because they cannot raise the price of admission without selling out.
This issue of unlimited political money is not complicated: it creates a kind of Gresham’s law of politics. Gresham states that “bad” money (paper printed with no backing) drives out the good (gold, silver and copper coins, or paper currency backed by these metals.) With Citizens United we have a Gresham’s law of politics, in which the bad candidates (bought and paid for) drive out the good (those of talent and integrity who will not be owned.) The primaries made this very plain: one very rich candidate with media skills who could pay his own way, and one running a unique campaign based on populist appeal and small live-citizen contributions. But the rest are dependent on rich backers, to whom they are indebted. Mrs. Clinton’s protestations notwithstanding, there is a quid pro quo when large sums change hands in politics, and anyone out of his or her teens who doubts this has not attained adulthood.
Not much can be said for Scalia’s sense of that this money issue, or the crisis it created. Citizens United finalized a disaster against which decent politicians were fighting a rear-guard action going back to the 19th century. For many decades the election of 1896 rather than the Civil War was regarded as the fundamental dividing line in our history because of McKinley’s close alignment with the financial establishment. Money became an open issue, followed by Teddy Roosevelt’s anti-trust crusade, and the battle continued into modern times as Congress struggled to keep itself clean. The Federal Election Campaign Act (FECA) of 1971 required candidates to disclose sources of campaign contributions and campaign expenditures, and the 1974 amendments placed limits on contributions by individuals, also creating the Federal Election Commission (FEC). The problem was ongoing, and in 2002 the McCain-Feingold Act updated resistance to further incursions. The problem was obvious enough that a Republican and a Democrat worked together to solve it.
This and earlier legislation established precedent which Scalia ignored. It has been said that to deny Congress the power to safeguard against the improper use of money to influence the election results is to deny to the nation the power of self-protection. Roosevelt’s crusade and those Acts of Congress were the voice of the people, a tradition developed over generations and reflected in these Acts. Scalia ignored all that, and found a clever “originalist” position in which the Constitution was contorted to be at odds with the survival of the people’s democracy that had given him so much. Neither of the Roosevelts had a fraction of his knowledge and precision, but they had wisdom, knew history, and respected the will of the people. As the Brits used to say, sometimes the law is an ass. Lincoln had the courage to suspend habeas corpus when the existence of the Union hung in the balance. These Presidents were men of a stature that transcends purely legal thinking and judgment.
Nino was a tough cookie, ambitious in a position where ambition is inappropriate and dangerous. In his early days on the Court, he was notoriously aggressive and dominating, and very disturbing to some of his most distinguished colleagues, who saw him as a careerist, determined to make his mark. He changed his approach, made his mark, and will be part a significant part of the national dialog far into the future. That dialog inevitably will raise the issue of just how absolute the Constitution can be in a world the founding fathers did not envision.
Finally, though, just how absolutely sacred is the Constitution? That’s one question Scalia would never consider. The other is how valid his perfectly argued positions are in terms of enabling the government to function as intended. Eventually someone will dare to observe that the British, from whom we adopted so much, do not even have a written constitution, and somehow manage to have elections not massively dominated by money. Watching their legislative process and comparing it to ours isn’t something many Americans have time for, but ours has been up a blind alley since SCOTUS appointed a president at the turn of the century. Nino was too busy perfecting his arguments to look up from his work.