The death of Justice Scalia gives me no joy, mostly because his replacement process is going to be a mess that will probably see a quisling put on the bench by the neoliberal Obama. Yet another part of this lack of joy comes from the fact that, up until I was radicalized for reasons that were wholly selfish, I found something tenable to Scalia’s views.
For those who are unclear, he tried for decades to argue that he was a strict “originalist” and that his views were informed by a textual reading of the Constitution. If it is not on a piece of paper written on in 1776, it is not his business. Yet time and again he would huff and puff like a Japanese blowfish when the Court ruled on things that an infant would say were in line with the spirit of the Constitution.
Take for instance his bloviating over same-sex marriage last summer. In his dissenting opinion on a case that was a slam-dunk for the notion of “well, duh“, he wrote “I write separately to call attention to this Court’s threat to American democracy.” There are obvious problems with the same-sex marriage decision because it is rooted in the Libertarian Capitalist ethos of Justice Kennedy, a trend that threatens the domestication of queerness and the loss of the radical edge. But there is little to be gained from Scalia, who always had a way of ruling in favor of his Catholic Church.
This is the way I saw the world until I became a feminist, something only caused by my recognition of myself as a homosexual. Until I understood the connection between anti-sodomy and anti-abortion laws I had opinions that were extremely problematic.
As the Court has ruled on cases since the beginning of the century, Scalia continued to be a voice of reaction and banality from the bench. He voted for the Court-approved coronation of George W. Bush. He said in a recent affirmative action case that African Americans might do better in “less advanced schools”. He voted in favor of the infamous Hobby Lobby decision. His dissent on the Affordable Care Act challenge King v. Burwell, while unable to suggest an alternative such as single-payer care, did include his description of the majority opinion as “pure applesauce“, a witty pun nonetheless.
What Scalia did was impose a reactionary variation of postmodernism on the American judiciary with his “originalism”. He said the Constitution was as infallible as the Bible is in the fundamentalist pew, a pew he sat in every Sunday, and made up loopy excuses for the fact that the document was written by slave-owning white landholders who denied suffrage to women for over a century while committing genocide against the native indigenous populations and denying rights to the very Catholic workers he descended from.
That final point is something that gives me certain dread. Several months ago, Dave Macaray wrote at CounterPunch that he thought Scalia’s proletarian roots might be the saving grace for labor unions in the Friedrichs vs. California Teachers Association case, saying “Scalia’s age (he’s 79) and cultural milieu (he was born in New Jersey) may work in labor’s favor. The son of Italian immigrants, Scalia had to have witnessed the salutary effect organized labor had on the working class, and has to know that unions can’t survive if Abood is overturned. Weirdo conservative or not, Scalia’s sense of “fair share” could prevail.”
Now with him gone, what can be expected?
