Legacy Of A Flawed Jurist

The first chapter of Scalia's legal legacy had been written by CNN legal analyst Jeffrey Toobin, and it isn't a flattering depiction.

According to Toobin,  Scalia devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.  Toobin concluded, "Fortunately, he mostly failed."

Some excerpts from his excellent piece in the New Yorker:

"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 great Justices of the Supreme Court have always looked forward . . . Chief Justice John Marshall read the new Constitution to allow for a vibrant and progressive federal government.  Louis Brandeis understood the need for that government to regulate an industrializing economy.  Earl Warren saw that segregation was poison in the modern world.  Scalia, in contrast, looked backward.

"His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood. When, in 2003, the Court ruled that gay people could no longer be thrown in prison for having consensual sex, Scalia dissented, and wrote, “Today’s opinion is the product of a Court . . .that has largely signed on to the so-called homosexual agenda."

"But it was in his jurisprudence that Scalia most self-consciously looked to the past.  He pioneered “originalism,” a theory holding that the Constitution should be interpreted in line with the beliefs of the white men, many of them slave owners, who ratified it in the late eighteenth century.  During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues."

"Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

"Like Nick Carraway [of the "Great Gatsby"], Scalia “wanted the world to be in uniform and at a sort of moral attention forever.” The world didn’t cooperate.  Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not . . . On the social issues where the Court has the final word, the real problem for Scalia’s heirs is that they are out of step with the rest of the nation. The public wants diversity, not intolerance; more marriages and fewer executions; less money in politics, not more. Justice Scalia’s views—passionately felt and pungently expressed though they were—now seem like so many boats against the current, borne back ceaselessly into the past."