Supreme Court Justice Antonin Scalia died this Saturday, and the nation lost its mind. Scalia was a powerful presence on the bench, known for his inflammatory rhetoric and his staunch conservatism. He was the driving force behind the paradigm of constitutional originalism — the notion that the original text of the constitution is the ultimate decider of right and wrong for the nation — long before it had caught on in the Republican mainstream. Though the second-oldest justice on the bench, he never betrayed a hint of frailty or intellectual lapse. Scalia was a constant in the world. To me, at least, it seemed like he had been there since the beginning of the nation and would remain there until the end of days.
No surprise, then, that his passing was like removing an anchor suddenly being loosed from the ocean floor — it sent the whole ship shaking. Senate Republicans howled at President Obama to refrain from nominating a successor, never mind the president’s constitutional duty to do so. Pundits and journalists scrambled to predict possible replacements and to pontificate on the way that Scalia’s passing will tip the political orientation of the bench. We have been used to the four conservative, four liberal, one swing grouping for a while now — the loss of the conservative bedrock under a liberal president could mean the end of the balanced bench as we know it.
One of the more troubling responses to Scalia’s death have come from activists and writers who have long viewed Scalia’s brand of strict constitutionalism as anathema to social progress. Some of Scalia’s sharpest criticisms have been against abortion rights, gay marriage and affirmative action, all hocking the doctrine of original intent to shoot down attempts at invalidating unfair state laws. With his passing, social media resounded with a sort of “ding dong, the witch is dead” celebration.
But the wheels of conservatism he set in motion are still turning. Not only has constitutional originalism become entrenched in the conservative mainstream, it comes from mouths much less civil than that of Justice Scalia. Divorced from Scalia’s scholarly background, the current vanguards of conservatism have taken up the constitutional banner for, frankly, stupider purposes — like calling for Obama to refrain from nominating
Scalia was the best of the bad bunch. He forced his opposition to rethink their positions and develop their arguments rigorously and thoughtfully. Before activists celebrate his passing, they should realize that Scalia possessed many gifts that his sycophants lack. Charm. Knowledge. The actual wherewithal to respond intelligently to criticism. He gave the modern right an intellectual backbone. Meanwhile, the conservatives he spawned are characterized mostly by misplaced nostalgia and lockstep resistance to Obama, not by any sort of principle. He was one of the last reasonable conservatives left. For that, at least, he should be sorely missed.
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A version of this article appeared in the Tuesday, Feb. 16 print edition. Email Richard Shu at [email protected]