Gavin Averill / The Hattiesburg American / AP

Scalia brought constitutional law into the political arena

Fittingly, justice's death becomes a central battleground over law at this politically charged moment

February 14, 2016 2:00AM ET

Justice Antonin Scalia, who died on Saturday after serving nearly three decades on the U.S. Supreme Court, transformed American politics and law. He was the judicial face of the extraordinarily successful conservative movement that came to the fore with the 1980 election of President Ronald Reagan. Scalia’s self-created role was to show that movement to be something more than an odd constellation of right-wing populism and Wall Street interests. In his voluminous writings over the last 30 years, Scalia attempted to demonstrate that this political movement expressed the truth of the Constitution. Politics was to become constitutional law, which meant that political victories would become unchangeable, constitutional truths. The high point of this campaign to convert politics into constitutional law was, of course, the infamous 2000 presidential election case of Bush v. Gore, which stopped the recount of ballots in the tightly disputed Florida vote and put President George W. Bush in the White House over Democratic candidate Al Gore.

Thanks in substantial part to Scalia, we now live in an era in which political claims are routinely packaged as constitutional claims. Consider the constant attacks on President Barack Obama, alleging constitutional overreach on everything from climate change to immigration. We also take for granted today that cultural controversies will be framed as constitutional claims: For example, consider the politics of abortion or the claims of religious groups for exemptions from having to recognize the rights of others. Scalia’s opinions are the fertile soil for these conservative positions.

Scalia said that he was doing only “lawyers’ work” in his opinions, but that hardly describes their reach and effect. He claimed to have hold of the constitutional truth, which he located in the original meaning of the text. Decades of scholars have argued that there is no such truth, and that even if there were, it would have only a problematic relationship to our own legal and political practices. But Scalia was never pursuing an academic enterprise to be decided under the rules of academic debate. He was lending the force of his judicial position to the conservative political cause.

By the end of the Scalia era, the political right sees any opposition to its substantive positions as a kind of treason against the constitution. This is Scalia’s dangerous political legacy. When the Court struck down the Texas anti-sodomy law in Lawrence v. Texas (2003), he accused the majority of bringing the culture wars into the Court, yet he was the most profound and skilled combatant in those wars. His jurisprudence was crafted in such a way as to make the Constitution the rallying cry of conservatives in the streets. The face of this movement today is Republican presidential candidate Sen. Ted Cruz, who links his politics to claims of constitutional truth — and, of course, links both to religion.

We no longer live in an era in which constitutional law can be separated from politics. Scalia helped to bring about this transformation.

Scalia was an elegant writer. His opinions were punctuated with memorable lines but often skirted the edge of civility. Especially in his dissents, he used a no-holds-barred rhetoric of attack, which could certainly liven up the often ponderous style of judicial writing. But behind these vituperative attacks was a most injudicious conviction that there could be no reasonable difference of opinion. There was a single truth and he had hold of it. 

On the Court, Justice Scalia combined his written personal attacks with a sociability that managed to sustain friendships even as he waged war against his liberal colleagues. Those who looked to him for guidance and vindication have rarely had the same personal grace. The angry and personally threatening character of our politics is yet another one of his legacies.

Scalia would have liked to think that his tremendous influence on the legal world was due to the persuasiveness of his reason. I doubt he persuaded many of his opponents; he mostly spoke to those who already shared his convictions. In truth, his influence was never about the strength of his reasoning. His positions drew much of their strength from his own charisma. He was a “rock star” to conservative law students, leading them on to use law to pursue social and political ends. Charismatic figures are notoriously poor listeners, and Scalia was no exception. He was interested less in arguments than in his own appearance as the righteous figure of constitutional truth.

Here, too, with the strength of his personality, Scalia had a transformational effect. Before he joined the Court, it was a quiet place. The justices, for the most part, lived private lives. They had little public persona. Scalia offered a different model. Most of the justices do not aspire to become cult figures, but they are far more comfortable with a public presence than was the case a generation ago. They write books and make public appearances. Scalia paved the way.

Not surprisingly, within hours of Scalia’s death, politicians were staking positions on the appointment of his successor. Will President Obama’s nomination be blocked by the Senate, or will this be his final legacy to the nation? We no longer live in an era in which constitutional law can be separated from politics. Scalia helped to bring about this transformation, even as he continually claimed to be leading the charge against it. More than that, he perfectly captured the nature of law in an age of politics. He was the charismatic figure, posing with the law even as he made it a weapon to be deployed in political warfare. Fittingly, his own death becomes a central battleground over law at this most political moment.

Paul W. Kahn is the Robert W. Winner professor of law and the humanities and the director of the Orville H. Schell Jr. Center for International Human Rights at Yale Law School. His tenth book, “Making the Case: The Art of the Judicial Opinion,” will be published this spring by Yale University Press.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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