STERN: Scalia: A Disguised Blessing for Democrats
Published: Monday, March 18, 2013
Updated: Tuesday, March 19, 2013 10:03
During recent arguments involving the Voting Rights Act, Justice Antonin Scalia made a remark that was shocking even by his own blustering standards. Musing on the recent unanimous, bipartisan renewal of the Act, Scalia decided that its continued support in Congress is attributable to “the perpetuation of racial entitlement.”
Scalia’s outrageous remarks and vehemently vitriolic dissents have made him the conservative justice liberals love to hate. But liberals’ loathing of Scalia and his bombastic conservatism is misguided. The justice shouldn’t be seen as a threat to the left. He should be seen as a hero.
Scalia is no more conservative than his three right-wing brethren — Justices Clarence Thomas, Samuel Alito and John Roberts. He’s just more vocal about it. The three are more restrained in their language, while Scalia broadcasts his conservatism at every turn with his caustically funny comments, savage dissents and brazenly dismissive opinion of any opposing views.
But this openness is in fact a blessing for liberals. Thomas, Roberts and Alito pose a serious danger in their tacit conservatism: They are able to sneak reactionary decisions past the general public without much notice. When Scalia gets involved, however, his outrageousness drags cases into the public spotlight and the Roberts Court become less successful at quietly achieving their conservative agenda. You probably don’t know, for instance, that the Court has vastly broadened the definition of “probable cause” to search a home without a warrant; in such cases, Scalia often hands the wheel to Roberts. But you likely do know that Scalia loathed the Affordable Care Act and saw it as a Democratic political power-grab.
He also provides a rallying point for the left. Liberal news sources like the Huffington Post and MSNBC subject every shocking Scalia invective to endless analysis. Progressive fundraising groups like Act Blue blast donors with emails condemning his alleged political agenda. Democratic politicians cite him as a disturbing example of the politicization of the Court, campaigning on the illegitimacy of cases like Citizens United.
Within the Court, Scalia can act as an equally divisive figure. The conservative wing is often fractured by his acidic obstinacy. When the Court overturned most of Arizona’s anti-immigrant law, Scalia issued a flagrantly political dissent that bashed President Obama and bordered on nativism. Neither Thomas nor Alito was willing to join this polemic, leading to a muddle of different voices and theories that withered in contrast to the majority’s powerfully patriotic opinion.
Moreover, Scalia’s flashes of extremism on issues like immigration and gay rights may have even driven swing justices to the liberal side. Justice Kennedy bucked against his death penalty bloodlust, while Justice O’Connor fled his homophobic intolerance. Even Roberts may have been swayed to uphold the Affordable Care Act in part by Scalia. And when a new member of the Court shows signs of moderateness, as Kagan did, Scalia is more likely to scare her off than to coax her toward conservatism.
It’s also worth noting that behind all of Scalia’s ballyhooed conservatism lies a libertarian streak that has helped preserve American civil liberties for over two decades. On cases involving flag burning, violent video games and hate speech, Scalia has been the deciding vote in favor of preserving freedom of expression. He has also been the Court’s chief defender of the Sixth Amendment’s Confrontation Clause, which mandates that the accused have a right to confront their accusers at trial, as well as trial by jury.
These flashes of libertarianism do not redeem Scalia’s record. But they do illustrate why his image as the Court’s arch-conservative is overstated. As a galvanizing figure and a spoiler for certain conservative causes, Scalia is indispensable. Liberals should direct their anger toward the Court’s quiet reactionaries, not its swaggering celebrity. As far as conservatives go, Scalia is more of a blessing than a curse.
Mark Joseph Stern is a senior in the College. LETTERS OF THE LAW appears every other Tuesday.