In my February 13 obit on U.S. Supreme Court Justice Antonin Scalia, I scoffed at the way millions rushed to eulogize him.
I noted that, if Scalia were the transformative jurist they were hailing, he would not have been known more for petty and pugnacious dissents than wise and precedential decisions. I noted further that he personified the politicization of the Court, where justices are now known more for their political affiliation than their jurisprudence.
I took a lot of flak. But sober reflections by Jeffrey Toobin and President Obama have now vindicated the discordant notes I sounded amidst the chorus of hosannas to Scalia.
Toobin, of course, is CNN’s famous legal analyst. He is also the author of a number of bestselling books in the legal genre, including The Nine: Inside the Secret World of the Supreme Court.
More to the point, here is the way he is now singing my discordant tune:
Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy…
Fortunately, he mostly failed. Belligerent with his colleagues, dismissive of his critics, nostalgic for a world where outsiders knew their place and stayed there, Scalia represents a perfect model for everything that President Obama should avoid in a successor.
(The New Yorker, February 29, 2016 Issue)
Ouch! Except that, reading this, you’d never know that Toobin led the chorus of those eulogizing Scalia, within hours of his death, as a transformative giant. This, alas, is why his sober reflection is the fruit of that poisonous chorus.
After all, here is the way he was singing their harmonious tune:
The loss of Justice Antonin Scalia is immensely significant on two levels. First, Scalia himself ranks among the most influential Justices in American history, alongside such figures as John Marshall, Oliver Wendell Holmes, Jr., and William Brennan. Second, Scalia was the linchpin of the Supreme Court’s five-justice conservative majority.
(The New Yorker, February 13, 2016)
As it happens, a number of people cited this Toobin tribute to challenge and even ridicule my obit. They could hardly have known that, just two weeks later, Toobin would be writing a sober reflection that effectively affirmed every word in that obit.
Indeed, you could be forgiven the impression that the legal scholar who wrote this glowing tribute is as different from the one who wrote that scathing critique, as a conservative Supreme Court justice is from a liberal one. Got that?
At least Obama can blame his initial hosannas to Scalia on the comity required of him as head of a co-equal branch of the U.S. government. But here is the way he is now vindicating my concerns about the politicization of the Court, which Scalia had such a heavy hand in fomenting:
If, in fact, the Republicans in the Senate take a posture that defies the Constitution, defies logic, is not supported by tradition simply because of politics, then invariably what you’re going to see is a further deterioration in the ability of any President to make any judicial appointments…
Not only are you going to see more and more vacancies and the court system break down … but the credibility of the (Supreme) Court begins to diminish because it’s viewed simply as an extension of our politics.
(New York Daily News, February 25, 2016)
I rest my case.
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