CNN and New Yorker pundit Jeffrey Toobin believes that Antonin Scalia was better suited for bygone times, but which ones? 1787, when the Constitution was written? The 1940s, which shaped Scalia’s alleged “revulsion toward homosexuality”? Or maybe the 1920s (Toobin likens Scalia to Nick Carraway, the narrator of The Great Gatsby)?
One thing, however, is clear: Toobin considers Scalia “a perfect model for everything that President Obama should avoid in a successor.” The late SCOTUS justice, asserted Toobin, “lived within the sealed bubble of contemporary conservative thought” and “devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed.”
From Toobin’s piece in the February 29 New Yorker (bolding added):
Scalia…devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed…[N]ostalgic 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…
His revulsion toward homosexuality, a touchstone of his world view, appeared straight out of his sheltered, nineteen-forties boyhood…
…Scalia…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…[In] District of Columbia v. Heller…Scalia spent thousands of words plumbing the psyches of the Framers, to conclude (wrongly, as John Paul Stevens pointed out in his dissent) that they had meant that individuals, not just members of “well-regulated” state militias, had the right to own handguns…
Scalia described himself as an advocate of judicial restraint…In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats…
Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the Washington Times…and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought...
…With Scalia’s death, there is a realistic possibility of a liberal majority [on the Court] for the first time in two generations…A Democratic victory in November will all but assure this transformation. Republicans are heading to the barricades; Democrats were apparently too blindsided to recognize good news when they got it…
…[E]ven though Scalia led a conservative majority on the Court for virtually his entire tenure, he never achieved his fondest hopes…Roe v. Wade endures. Affirmative action survives. Obamacare lives. Gay rights are ascendant; the death penalty is not…For all that Presidents shape the Court, the Justices rarely stray too far from public opinion. And, 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.
