In death, Scalia may become more powerful than ever

Opinion, LGBT, NakedLaw, Politics, Rights

A version of this article originally appeared on ATLRedline

The one thing modern constitutional scholars always had over Antonin Scalia were “outcomes.” Scalia could wax poetic and pugnacious about how originalism grounded Constitutional interpretation in something more worthy than the evolving personal standards of the Supreme Court justices, but he could never escape the outcomes originalism would lead him to.

Scalia could tell you, for instance, his very good reasons for voting against gay rights, or women’s rights, or civil rights, but a theory that keeps gays and women and minorities shackled to the standards of what was permissible in 1787 would always be relegated to the fringes of jurisprudence.

That’s why, for all of Scalia’s intellectual ferocity, more pragmatic conservatives like John Roberts and William Rehnquist or even Richard Posner usually won the day. That’s what happens when you are a 21st century jurist who has to go through mental gymnastics to explain why segregation is unconstitutional. You spend most of your time losing and railing in defeat.

Outcomes also produced the few holes in Scalia’s renowned intellectual purity. Sure, he could tell you that he was bound to Constitution, whether he liked it or not. But when it came time to pick a President? Well, he, at least, was able to get over it.

The man vs. the message

Antonin Scalia was not a walking interpretative theory. He was a real person with real hangups who heard real cases that produced real consequences. The application of originalism by its chief proponent was always the best argument against it.

Until now. As Antonin Scalia passes from man into myth, his theory sheds the mortal coil that made it frail and smelly. Like Marxism or Jesus, you won’t be able to blame “originalism” for what people will do in its name anymore. The doctrine can fully become a matter of faith: something for conservatives to appeal to when logic and evidence offer no quarter. Don’t believe me? Try explaining to any Republican born after 1985 that “trickle down economics” is a crackpot theory popularized by Ronald Reagan that doesn’t actually work.

And that’s before Scalia’s public record gets the whitewashing an “icon” of a “movement” usually receives.

Take Scalia’s dissent in Obergefell v. Hodges. Most of us know that it will not age well. But some of you reading this will live long enough to hear somebody defending Obergefell along the lines of: “Well, he was a prisoner of his times. Everybody back then was pretty homophobic. You couldn’t get appointed the the Supreme Court unless you showed your anti-gay bona fides! I’m sure if he was alive today, Scalia wouldn’t write this stuff, and anyway you can’t blame originalism just because Scalia went along with the times.”

It’s not true, sad graduate student reading this on future microfiche. Plenty of people during Scalia’s time were not homophobic, including other members on the Supreme Court.

Ask the Romans: they’d tell you it’s a lot harder to fight a ghost than it is to debate a man. Fighting against what people believe Scalia stood for will be much more difficult than fighting against the real Scalia. It won’t be long before Ted Cruz tells us that Scalia appeared to him as a glowing green vision with secret knowledge on how to repeal Obamacare.

The Conservative movement lost a champion, but they’ve gained a patron saint. The man is now benign, but the idea just metastasized.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

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