Antonin Scalia died a failure. He failed at the thing he liked to claim he was doing, and he failed at the thing he genuinely was trying to do. Both failures are captured by the furious and immediate response to his death, as Republican members of the Senate hastily announced that they will preemptively withhold their advice or consent from whoever the President of the United States might nominate to fill the vacancy.
This is a strange way to honor a man who insisted that his loyalty was always to the Constitution. He was, he said, a humble lawyer, obedient to the texts he was given. He followed the law where it led. To do otherwise was a “threat to American democracy,” as he wrote in his dissent in Obergefell v. Hodges, denouncing his colleagues on the Supreme Court for having denied the people of the states the right to pass laws against gay marriage.
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” Scalia wrote.
What does deserve to be called a democracy? Fifteen years earlier, concurring with the court’s stoppage of the Florida presidential recount, Scalia argued that recording a count of disputed votes was also a threat to democracy. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.
As Scalia put it in Obergefell, in one of his own meticulously crafted judicial analyses: Huh? The whole sentence had the shape of something authoritative, but on inspection, the inclusion of the word “not” becomes more and more peculiar. Try taking it out: Count first, and rule upon legality afterwards, is a recipe for producing election results that have the public acceptance democratic stability requires. It’s at least as reasonable as Scalia’s version.
But Bush v. Gore was not an act of reasoning. It was an act of assertion, the baldest of the many, many pieces of evidence that Scalia’s performance as an independent thinker was a sham. His great stack of dissents and concurrences, the volume of legal argument that he generated, simply reflected the fact that he enjoyed hearing the sound of his own voice. By his own confession, he did not even try to persuade his colleagues to join his reasoning. That was not what he was there for. Underneath the bombast and the pious invocations of the will of the founders, he was nothing more than a loyal member of a very contemporary partisan Republican bloc.
The moment he died, his Republican colleagues in the legislative branch stopped pretending he was anything else. All that was left of his philosophy was: How do we get a win out of this?
That was Scalia’s first failure. His second failure was visible in the Senators’ desperation: Having abandoned judicial persuasion for naked power politics, he never got the power he wanted. He grew more pugnacious and less influential. In the end he was left to fume on the sidelines, writing yet another raging dissent, as Chief Justice John Roberts, a loyal but pragmatic member of the judicial conservative movement, voted to uphold the Affordable Care Act.
The book is closed on the Scalia wing of the court. It peaked at four solid votes, with the fickle Anthony Kennedy flitting in and out of the majority. Now the Republicans are threatening a constitutional crisis in the hopes of even getting it back to four. There is Antonin Scalia’s legacy. He aimed low, and he missed.