The vacancy on the Supreme Court due to the passing of Justice Antonin Scalia presents an opportunity for the political left. If his replacement and the dogfight that will accompany it is not a call to arms and a reason to vote for every young American facing an uncertain future, it is hard to think of what might be. If Democratic presidential candidates Hillary Clinton and Sen. Bernie Sanders (Vt.) are smart — and they are — they will, unlike their Republican brethren, observe a few minutes of silence and make haste to point out that the next judicial appointment cannot be left to the Republican Party. Why? Because if it is, there will continue to be attacks on corporate versus individual rights, on religious rights trumping civil rights, on Second Amendment rights overshadowing the need for a safe and civil society and that legislative intent has little bearing on judicial outcomes.
{mosads}While some of the hypocritical political correctness plays itself out, it is interesting to note that those who were Scalia’s greatest supporters greeted his passing with an immediate and stern warning to the president that no nominee would be approved, and the garish spectacle referred to as the Republican presidential debates featured the quintessential testimonial to how politically correct has become correctly political.
The fact that Scalia was a “giant of originalism” and a man who had a profound impact on American jurisprudence is proof of little more than the vacuous nature of judicial thinking in this era. His argument was that the words of the original Constitution should be strictly the focus of judicial findings. Over his 30-year tenure, his views gradually held sway over a generation of legal operatives. It never seemed to impress the legal community that the original language of the Constitution sought voting rights only for white property owners, suggested that people of color were only two-thirds human, that women had no political rights, that direct elections were to be mostly avoided and that nowhere in the original Constitution did it say that the court was to have the final word on legislation through judicial review.
Few, if any, have argued that originalism is merely a cover for the current elitist fad. Often cited is the fact that Scalia was apparently wildly popular with his peer group, vacationing with Justice Ruth Bader Ginsburg and hunting with Justice Elena Kagan. For us who are less accepting, these descriptions are more akin to advocating for Stockholm syndrome as a legitimate psychological training tool.
We have been treated to the disingenuous tirade of Republicans railing against activist judges while all the time they were gestating an entire generation of business-oriented lawyers and judges. Our courts proliferate with these bastions of the conservative right and we are told that they are simply engaged in sober “textual” assessment of the written word. Skeptics might suggest that one political philosophy simply replaced another. The tragedy is that the courts are now the enemy of progressive legislation. For anyone who believes that there is a sharing concept that has to be part of a regulated capitalist economy, these are particularly dark days. The progressive precedents of the Warren Court are being systematically overturned and the business-oriented philosophy has been firmly cemented in the Roberts Court.
The next appointment to the court can reverse that trend and voters need to connect those dots. The fact that they may not have already done so is testimony to the sorry state of civic awareness, but Democratic candidates can use the issue as a screaming example of the depths to which politics has sunk over the course of the past 40 years.
It is really hard to imagine how the economic lessons of a rising middle class and strong economic growth have been missed by so many Americans, but they have. It is equally hard to understand how so many have missed that American exceptionalism based on liberty, egalitarianism, individualism and democratic politics comingled with support for capitalism requires all components, not just a few. But we are where we are and the only hope for those of a progressive persuasion is that there will be a massive outpouring of revulsion over the exploitative behavior of elites.
Antonin Scalia’s passing is but one arrow in that quiver, but it is an important one. I suspect he would have been amused by the irony of his timing. It truly comes at an opportune time to help the political left.
Russell is managing director of Cove Hill Advisory Services.