Almost everyone either loved Antonin Scalia or hated him. I’m ambivalent. He was a brilliant jurist and a joy to read. He was wrong about same-sex marriage, but Anthony Kennedy, who wrote the somewhat daffy opinion recognizing it, deserved the ridicule Scalia piled onto him. On crucial occasions, however, Scalia’s dedication to judicial restraint, the main theme of his jurisprudence, evaporated. Then he turned into a partisan hack, with no awareness that this had happened. It is precisely because he was a great man that he was sometimes a tragic figure.
The most momentous of these was Bush v. Gore, the case in which the Court, by a 5-4 margin, installed as President the catastrophic George W. Bush, who had lost the popular vote by half a million votes. The vote counting in Florida wasn’t finished, and we will never know how it turned out. The preposterousness of the Court’s reasoning was thoroughly explored, then quickly forgotten, because the decision intentionally had no effect on the later course of constitutional law. From the perspective of judicial restraint, Mr. Bush’s attempt to circumvent the counting of votes should have presented an easy case. The Constitution provides a detailed procedure for selecting the President. That procedure does not authorize the Supreme Court to pick the President it likes. It has no role for the Court at all. Can you imagine what Scalia would have written if Democratic appointees had tried to pull something like this?
And then there is his remarkable dissent in the Obamacare case, where he tried to blow up the entire statute on the basis of a previously unheard-of constitutional objection. That, too, never had any business being in the Supreme Court. The Court decided way back in 1819 that Congress has the power to choose any convenient means for carrying out its enumerated powers. Scalia had never before questioned that. But that has to mean that the mandate to buy insurance is well within Congress’s discretion. Why wasn’t he convinced? Because “there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved.” Not only does this deny Congress the discretion to decide how to do its job, it doesn’t even make sense in terms of the program’s goals – which, Scalia here forgets, also included reducing the number of Americans who had no health insurance!
During the oral argument in that case, Solicitor General Donald Verrilli argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Scalia responded: “Well, don’t obligate yourself to that.”
Scalia was saying, in effect, that there is no real obligation to care for sick people who cannot afford to pay for their own medical care; that any assumed “obligation” is really a discretionary choice. You can choose to obligate yourself or not. Now, Scalia obviously didn’t believe that. He was a devout Catholic, and the Church is clear that society has an obligation to provide necessities, including necessary medical care, to the poor. Even if he did, what legal basis could there be for reading this callousness into constitutional law? Why was he saying these things?
By now, the “echo chamber” effect of conservative media, in which the constant repetition of falsehoods generates a situation in which millions of Americans regard them as common sense, is well documented. Scalia, it seems, was captured by this effect. In Bush v. Gore, he appears to have imagined that the Florida courts had been captured by the Democrats. In the Obamacare case, Republicans had persuaded themselves that the modest requirement for everyone to have health insurance – a requirement that was originally their own idea, invented by a conservative think tank – was an unprecedented assault on human freedom. Scalia came to these cases believing these things. And so it transformed him, in each case, from an advocate of judicial restraint into exactly the kind of arrogant oligarch that he denounced with such wonderful panache.
When Scalia wrote about judicial practice, his narrative tended toward melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. I have sometimes mocked this narrative, since it was often inconsistent with Scalia’s actual practice as a judge, and suggested that his self-deceptions made him a comic figure, the Guy Who Isn’t In On the Joke. But such narratives can call forth our best selves. His story has a tragic dimension as well.
Shakespeare’s Othello is a great man misled by friendship, induced by his malign companion to murder what he most loved. The dominant theme in Scalia’s jurisprudence is a deep faith in judicial restraint, the virtues that prevent a judge from being a political apparatchik. Alas, his conservative friends led him astray, so that on these crucial occasions, all unknowing he killed the thing he loved. It is with deep regret that one must repeat another line from Shakespeare: Oh, what a noble mind is here o’erthrown.