The first reaction, from she who is closest to me, when I brought her the news as she knelt on the black cloth cover through whose agency we are trying to turn our small, once green, front yard into something “drought resistant” (January’s deluges haven’t fooled us…) was to scream, “Yes!” and prostrate herself in the bright sun, “There is a God!”
“Not so fast,” I replied. “What kind of a ‘god’ are we talking about here? The one that Antonin Scalia sculpted so tortuously and pervasively in his personality and politics? Or the ones that will now be evoked, twisted, melted, reconstructed into self-serving ‘Vote for Me’s!’ during the next nine months – and beyond?”
A part of me gets deeply amused by all this. People ask me, endlessly, months and years before elections, what I think is going to happen. And my universal answer is a gnomic, “Whatever happens is going to be heavily influenced by what hasn’t happened yet.”
Not that there won’t be other things happening between here and there – perhaps even the same things, given the ages of the remaining eight justices (half of whom are north of 77 years, another two over 65).
But for now, let’s look at this one.
If you’re interested in things like peace, equality, and social justice, Scalia has been about as bad as it has ever gotten in US history. And it’s gotten pretty bad.
He claimed, and was given, nominal leadership in the US legal thought tendency known as “textualism” or “originalism.” Meaning that whatever the Constitution says, it says. That this solipsistic truism is the subject of anything other than laughter says it all. Because the self-evident truth, obvious since humans began to codify and symbolize thoughts through speech and writing is that…hold on….meanings vary and change! Depending on a vast variety of elements. And that words like “justice,” “general welfare,” and “liberty” are not self-defining. Nor can they be definitively concretized by referring to the mindsets and writing of those who, after much discussion and debate, put them on parchment. Because – hold on to your textbooks here – it took not very much time for even those who had debated and discussed them to disagree about what the result meant!
Now this may not have been the catechismic way of looking at politics in St. Francis Xavier, Scalia’s military high school (he never served in the military – did you know that?) or Georgetown of his era (he didn’t get into Princeton, which at the time was run by exclusionary WASP bigots), but it certainly was something he might have assimilated at Harvard Law School.
Yet he didn’t. Because he was, as the hard-line Commies used to say, “under discipline.” And that discipline did not come from the Constitution, but from another fabulist authority, the bible. The ordering of humanity in which Scalia believed comes not from human law, but supposedly divine guidance. Whose words are – get this! – themselves subject to….interpretation of meaning! For example, the pope who is currently treating the oppressed in Mexico to his Hallmark platitudes would not agree on very much in the bible with World War II era Pope Pius XII, who collaborated with Mussolini’s exterminist Hitlerian behavior.
The historical oddity that the Supreme Court has come to have a Catholic majority (nominal Catholics constitute about 22% of the population) stands beside its other anomalies: all (but one – she went to Columbia) graduated from either Yale or Harvard Law Schools, and all but one (our very own confused California Catholic Anthony Kennedy) come from East Coast states.
But the Court was never meant to be representative, or “diverse” in any way. It was meant primarily to resolve what were essentially property disputes. If its “original intent” were observed today, it would have nothing to do with whether someone can have an abortion, or anonymously pour billions into election campaigns, or blithely pollute the air we breathe and the water we drink, or torture someone, or walk around Texas brandishing a weapon. But in the sense that it can and does deal with such issues, however misguidedly and arbitrarily, it can sometimes provide what we tend to think we cannot even hope for. (You want an antidote to Scalia hagiography, read Juan Williams’ (unfortunately misnamed) 2000 book, “Thurgood Marshall, American Revolutionary.”)
And as for current electoral implications, try this one. (I’m not claiming to be the only one who will have thought of this, by the way, I’m writing just a couple of hours after Scalia’s demise…)
You’re Bernie Sanders. The establishment media (which is to say all newspapers, radio and TV) is picking on you because your home state is so white. So you wait a decent interval, something longer than the customary nanosecond in the silly twittersville we inhabit, and you announce a major promise.
After condolences to Ms. Scalia, their nine (!) children and abundant grandchildren, you say… “This country cannot go any further in the direction Justice Scalia took us. Therefore, my first act, upon being elected, will be to nominate his successor, “Barack Hussein Obama.”
(Larry Bensky is the retired National Affairs Correspondent for Pacifica Radio. He can be reached at: LBensky@igc.org.)