RIP Scalia: Bye, Bye Tony Two-Vote

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It has been a rule of decorum since ancient times: de mortuis nil nisi bonum dicendum est, speak no ill of the dead. I would not be surprised to learn that all the world’s great cultures observe a similar precept.

But then how can one speak at all of Antonin Scalia?

Leave it to liberals to find a way. Since that villainous Supreme Court Justice passed away in a luxury hunting resort deep in the heart of Texas, they have been outdoing themselves. There has been nothing like it since Ronald Reagan expired.

Scalia seems to have enjoyed sparring with liberal colleagues; by all accounts, he was feisty. Jurists evidently like that; and, unless it is crocodile tears they are shedding, some of them actually seem to have liked the man. He kept his friends close, and his enemies closer.

The reference to “The Godfather” is intentional. In the age of Trump, good-natured ethnic slurs are acceptable again.

I therefore proudly admit that I cannot remember a time when I did not call Justice Scalia “Tony Two Vote.” At first, it was because he had two votes on the Supreme Court, his own and the one belonging nominally to Clarence Thomas. Then it was because, after voting for George W. Bush in 2000, he voted for Bush a second time in Bush v. Gore – enabling the many crimes against the peace and against the Constitution that would follow.

The inference, of course, is that Scalia was an unphotogenic and less colorful version of Don Corleone. Like Scalia, the don was a good family man, gracious and charming, and fully capable of making people offers they could not refuse. Though only one of the two is fictional, they are both cut from the same cloth.

Even gushing pundits, trying to articulate the difference between Scalia’s conservatism from the kind on display at Republican Party candidates’ debates, sometimes remark on the southern European flavor of the Scalia variety. That observation is spot on.

Italians and other southern Europeans, Spaniards especially, know the type: Masonic lodges, like the infamous Propaganda Due, are full of them. So are quasi-secret Catholic societies like Opus Dei.

The guardians of conventional wisdom insist that anyone who questions the circumstances surrounding Tony Two Vote’s death is a “conspiracy theorist.” I frame no hypotheses. But I would note that one reason why so-called conspiracy theories have caught on to the extent that they have is that the circumstances of the man’s death conform to a pattern that people recognize.

Death by foul play has been a recurrent theme in Italian literature, and of world literature set in Italy, since even before the Renaissance. Nobles and Princes of the Church seem especially vulnerable. A Supreme Court Justice, essentially a super-legislator with lifetime tenure, is like a magistrate of an Italian city-state or a member of the Roman curia.  Scalia’s death fits the story line.

Though born in New Jersey and raised in New York, the man was a creature of the old world and of a bygone era. Few Italians or Italian Americans these days play Vatican roulette, and boast of it. Scalia did however; he was old school.

But then why the Protestant jurisprudence? This plainly is what Scalia’s “originalism” was about. It harkens back to the old Protestant idea that authority lies with the Bible, not any Church; that the Good Book contains all the answers, and that the less read into it the better. Substitute the U.S. Constitution for the Bible and voilà.

This is not a cast of mind that one would expect a good Catholic boy to adopt.

Could the explanation lie with the Justice’s upbringing? It seems that his father, a professor of Romance languages at Brooklyn College, was a devotee of the New Criticism, and therefore of scrupulous fidelity to words in texts torn out of their historical contexts.

Maybe this is part of the explanation. But it is one thing to read literary texts by focusing on their formal properties, and something else to regard texts from other times and places as authoritative guides to practice in the here and now. For Scalian jurisprudence, blame old-fashioned American Protestantism, not the academic fashions of Scalia’s father’s time.

Another good question is why, all these years later, anyone would care what some eighteenth century southern planters and northern merchants had in mind.

The gushing tributes to Tony Two Vote that I have seen don’t address this question directly. But a few commentators have suggested that the very idea of a “living Constitution,” a constitution that adapts to changing times and circumstances, got his goat.

Perhaps this is the key to both mysteries: a Constitution that is fixed in time and never changes, except in the ways that the founders envisioned, is a better bulwark against change than one that evolves through timely interpretations.

Some of the liberals who have been praising Scalia of late adduce, as evidence of his virtue, how, in particular instances, he would stick to his “originalist” guns, even when his convictions clashed with his inclinations.

What they have in mind are instances in which, notwithstanding his fondness for police power, he would rule against giving the forces of law and order freer rein in criminal cases when doing so would clash with literal readings of pertinent constitutional texts.

But they also praise him for deviating from his originalism when its implications cut too deeply against the spirit of the time. For example, he didn’t outright favor overturning Brown vs. Board of Education, the case that made de jure school segregation illegal, though he would insist that he could not defend that ruling on originalist grounds.

Also, many of his rulings rely less on what the language in the Constitution literally says, and more on current understandings of what its words allow. How else could anyone countenance assigning individuals untrammeled rights to amass arsenals of assault weapons from a text that speaks only of “well regulated militias,” and that assumes that the “arms” people can rightfully keep and bear are eighteenth century muskets?

Or how could Scalia cheer on the wars his Republican friends in the White House got going, when the words of the Constitution are clear: that, for the United States to go to war, the Congress of the United States must declare war?

These and other deviations from a strictly originalist course smack of an inveterate disingenuousness on Scalia’s part. True to character, Protestant jurisprudence, in his hands, was less a principled doctrine than a cover for machinations that would make the Medicis proud.

And yet, the conventional wisdom has it that Scalia’s legal writings, judicial opinions and dissents provide evidence of his brilliance. Arguably, those of us who are not legal theorists have no standing, as lawyers would say, to judge Scalia’s scholarship. Perhaps. But, in his case, the problems are so glaring that it is hard to imagine how habits of mind acquired in the course of a legal education could make them go away.

I could go on, but I will not because we must not, after all, speak ill of the dead.

Or perhaps there should be an exception, when there is an overriding public interest.

Ronald Reagan, the President ho put Scalia on the Supreme Court, died eventually, but Reaganism lives on – in the theory and practice of our two semi-established political parties and in the “legacies” of the two Bushes, Bill Clinton, and Barack Obama. Unless Hillary Clinton is vanquished, we will not be done with Reaganism yet.

That danger is clear and present, but liberals don’t need to make the problem worse by venerating the likes of Tony Two Vote; or by pulling their punches, Obama-style, in the search for a replacement.

Scalia is dead, and we must now do all we can to make sure that he stays that way.

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ANDREW LEVINE is the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).