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Political Animal

Scalia's America

By Brian Morton | Posted 7/2/2008

Back before we got John Roberts as the nation's newest chief justice of the Supreme Court, it was widely bandied about that Antonin Scalia had a hankering to be elevated to the position. In some ways, it is rather surprising that George W. Bush didn't appease him in this quest, as it would have fulfilled one of the hallmarks of the Bush presidency: an obstinate need to remake reality in the image to which he would like it to conform.

By elevating Scalia to chief justice, Bush would have repeated what conservative deity Ronald Reagan accomplished when he took the Court's most prolific dissenter and moved him to the center of the bench as he did with William Rehnquist. Scalia, however, is famous more for the amount of invective he can load into a dissenting opinion--much of it aimed at his colleagues on the court--as he is for his opposition for the majority opinions he opposes.

In the end, however, Bush went for distance and not speed in creating his version of the country he'd like to see, and named a much younger chief justice in Roberts, allowing him to try and steer the country in a more conservative direction for far more years, rather than bend the law and the nation immediately via a Scalia court.

Last week's close-of-session opinion on the Washington, D.C. handgun ban might be considered a immediate Bush victory via a Scalia opinion, the sort of "instant remaking" we would have seen earlier under a Scalia court. Frankly, the decision was the least surprising of this year's court--as soon as the Roberts Court took the case it was pretty clear that the undoing of the almost 70-year precedent of U.S. vs. Miller and the collective-rights view of the Second Amendment was in its sights. This court has had little problem hollowing out precedent from previous decisions, such as its general tack on Roe vs. Wade (which Scalia believes should just be turned over already and screw the dilly-dallying). After Bush vs. Gore, it has been fairly apparent that the conservatives on the court (depending on which Justice Kennedy shows up for work that day) have no problem fixing the reasoning to support the desired end result--which dovetails nicely with the general conservative political belief that any decision they don't like is "judicial activism by unelected justices."

Let us remember eight years ago, when National Rifle Association then-vice-president (and current president) Kayne Robinson was caught bragging on tape to a roomful of gun rights activists, "If we win, we'll have a Supreme Court that will back us to the hilt. If we win we'll have a president, with at least one of the people that's running, a president where we work out of their office. Unbelievably friendly relations." So it's not exactly a surprise that more than three decades' worth of lobbying would result in an NRA victory under a court where two generations of Bush presidencies provided the winning margin in a gun-rights decision.

As usual, however, there are always unintended consequences that follow things with the Bush imprimatur on them--in this particular case, it will open up a few more decades' worth of litigation over the regulation of guns, which might be arguments that the NRA and its colleagues might not be looking forward to, given the current trend in the country. If the nation elects both a Democratic president and Congress, don't be too surprised to see both a few new court members and a few new laws that might take the smiles off the faces of the people who were celebrating the Scalia decision last week.

As for Scalia himself, a trend like this could see him return to his old form--full of blistering, hyperbolic, Coulter-worthy screeds about more people dying (sort of like his dissent in the case restoring that hoary old trope called habeas corpus) and attacks on his fellow justices who pen opinions with which he finds fault. Remember, this is the same justice whom one week finds the end justifies the means when it comes to locking people up in Guantanamo and throwing away the key, "Great Writ" precedent be damned, and then the next minute blowing through textual analysis of the Second Amendment to go all the way back to natural and inherent human rights to defend ourselves as part of a defense against tyranny. Makes you wonder how those accused down in that U.S. naval brig in southeastern Cuba feel about those natural rights?

One of the great things about law and America is that it's fluid and ever-changing. And Antonin Scalia once wrote in a dissent that the majority view spoke of a country with which he was not familiar. I read many Scalia opinions and think his is a country I don't believe I'd ever want to visit. Hopefully, we are moving toward the former.

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