Scalia: The Donald Trump of the Supreme Court

Antonin Scalia has died. Cass Sunstein, one of Obama’s favorite law professors and, for a time, regulatory czar in Obama’s administration, had this to say from his perch at Harvard Law School:

(Suddenly I see the wisdom of Bill Buckley’s famous quip about Harvard.)

In the coming days, the retrospectives on Scalia’s career and predictions of what is to come will be many; they’ve already begun.

But for me Scalia is a figure of neither the past nor the future but of the present.

If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia. Scalia is the id, ego, and super-ego of modern conservatism. He was as outrageous in his rhetoric (his unvarying response to any challenge to Bush v. Gore was “Get over it!”) as he was cruel in his comportment. Sandra Day O’Connor was the frequent object of his taunts. Hardly an opinion of hers would go by without Scalia calling it—and by implication, her—stupid. “Oh, that’s just Nino,” she’d sigh helplessly in response. Even Clarence Thomas was forced to note drily, “He loves killing unarmed animals.” He was a pig and a thug. (Sunstein, by contrast, believes “he was a great man, and a deeply good one.”) And he was obsessed, as his dissent in PGA Tour v. Casey Martin shows, with winners and losers. They were the alpha and omega of his social vision. He was the Donald Trump of the Supreme Court.

And the second most misunderstood judge of the Supreme Court, as I argued in a lengthy profile of Scalia, which originally appeared in the London Review of Books and which I revised extensively for one of my chapters in The Reactionary Mind. I reproduced that chapter in four parts on my blog. Here they are again.

Prologue: I’ve Got a Crush on You

Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”

Act One: Diva of Disdain

Scalia’s conservatism, it turns out, is less a little platoon than a Thoreauvian counterculture, a retreat from and rebuke to the mainstream, not unlike the hippie communes and groupuscules he once tried to keep at bay. It is not a conservatism of tradition or inheritance: his parents had only one child, and his mother-in-law often complained about having to drive miles and hours in search of the one true church. “Why don’t you people ever seem to live near churches?” she would ask Scalia and his wife.  It is a conservatism of invention and choice, informed by the very spirit of rebellion he so plainly loathes—or thinks he loathes—in the culture at large.

Act Two: American Nietzsche

Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Act Three: Affirmative Action Baby

Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.



  1. Lawrence Houghteling February 14, 2016 at 8:58 am | #

    from Linda Greenhouse’s NYT column on 11/12/15:

    “… conservative federal judges who used to be very strict about deciding who had the requisite “injury in fact” to bring a lawsuit are now flinging the courthouse doors open wide to anyone with a complaint that might prove useful in propelling a particular agenda. ”

    Guess what influential justice spurred that tendency along.

  2. salvatore j fallica February 14, 2016 at 9:01 am | #

    well done!

  3. Rick Cass February 14, 2016 at 10:05 am | #

    Well done, but in my opinion, you are too kind to Scalia. He was a died in the wool son of the Counterreformation, and would see people, and the Constitution burn to have his way.

  4. realthog February 14, 2016 at 10:10 am | #

    To my shame, the first thing that passed through my mind on hearing of Scalia’s death was the famous Irish Times obituary for Hendrik Verwoerd.

    • HenryW February 14, 2016 at 1:37 pm | #

      While i thought of Justice Frankfurter’s (possibly apocryphal) comment on the death of Chief Justice Vinson after the first argument but before the reargument in Brown v. Board of Education.

  5. Allen Ruff February 14, 2016 at 10:33 am | #

    To cite the late, great comedian, Moms Mabley, “One should never speak bad of the dead, but only say good… He’s dead. Good.”

  6. Roqeuntin February 14, 2016 at 10:54 am | #

    I’m glad Scalia bit the dust when Obama was still in office so he’ll handle the nomination. Sort of like when Breitbart died, if I had any kind of belief in the divine I’d say it was doing us a favor.

    I’m not really shocked by the Sunstein quote. First, because when a public figure dies people come out of the woodwork to deliver sentimental elegies, even if they couldn’t stand the person. Secondly, trades and professions are like a club and the legal education system teaches people day and night to hold the Supreme Court in the highest esteem. You are taught to have a religious reverence for the institution of the Supreme Court itself, no matter how much you agree or disagree with its decisions. The Supreme Court is the American Vatican, our group of Cardinals interpreting the sacred texts and telling them how they apply to our lives. While the institution may be ostensibly secular, it plays an almost identical role in society. It is the furthest thing from a coincidence that fundamentalist Christians have the same attitude towards the Bible as they do the Constitution.

    I have to disagree about Trump though. Loathsome as he is, I do think he harbors the same ideas about tradition so essential to a conservative like Scalia. Every time I hear Scalia’s name I think about Julius Evola, one of the key intellectuals in the far right of early 20th century Italy. He had the same loathing for a corrupt, materialistic modern age (Kali Yuga) and argued for a revolt in favor of radical traditionalism. You don’t get so much of that with Trump. While he may pine for a sort of bygone American golden age, hr is really just a sleazeball businessman with a penchant for self-aggrandizement. He gives no fucks about history, nor Christianity, nor anything that doesn’t lead to turning a profit. Even you, quoting Buckley as stating “capitalism is boring” show that this isn’t what reactionary conservatism has often been about. Maybe it’s being pedantic, but I don’t think putting them in the same basket is entirely accurate.

  7. xenon2 February 14, 2016 at 11:54 am | #

    Don’t compare him to Trump, Scalia is in a different ballpark.
    Scalia is your typical Harvard Supreme Court Justice.

    Listening to the debate last night, I think Trump stood out,
    and ‘told it like it is’, which is very appealing to voters.

    Despite the fact ‘he would get Mexico to build the wall’ and
    other things he has said (anti-refugees, water-boarding, etc.)
    I think he is a very viable candidate.

    Sanders caters to Hillary’s greater knowledge of foreign policy.
    What Sanders is actually endorsing, is the Neocon version of
    foreign policy.That’s a big mistake and makes him look like a
    one-issue candidate.

    Scalia was responsible for many deaths by execution and more
    poverty among the disenfranchised.Trump, as far as I know,
    hasn’t killed anyone.

    Did you listen last night’s debate?

    • Dana February 14, 2016 at 12:36 pm | #

      Trump is not telling it like it is. Trump is saying what he thinks, which is not the same thing. He does not have a hotline to Ultimate Reality. He is as biased as you or I or anyone else. Add to that his drive for power and profit and it’s not surprising he stoops to outright lying as well. No one needs that in office. The everyday lies politicians tell are bad enough, Trump would add on an entirely new layer. And at his age he still can’t manage to behave like an adult, which is sure to get us killed on the international stage, if not in an actual war.

  8. Lee February 14, 2016 at 12:25 pm | #

    What you call “Trump telling it like it is” is appalling bigotry and misogyny. Do you really endorse that crap?

    • Dave Briggs February 15, 2016 at 12:36 pm | #

      Trump does not “tell it like it is,” he tells it as he wants it to be, for him alone. Examples: American conservatives are not in favor of divorce . . . Trump is divorced, twice. Trump . . . casino revenue will restore and invigorate Atlantic City . . . Trump casinos declare bankruptcy along with other casino “saviors.” Trump will deport 11 million Mexicans/South Americans . . . are the resulting menial low paid (for the most part) job openings the ones he intends to “create.” to count on to be, “the greatest jobs president” in our nation’s history? Please Donald, get real.

  9. xenon2 February 14, 2016 at 2:12 pm | #

    @Lee I don’t ‘endorse that crap’.
    Did you listen to the debate last night?

  10. troy grant February 14, 2016 at 2:18 pm | #

    Sunstein may be angling for Scalias job in a way that is palatable to the Republican Congress.

  11. ron bruno February 14, 2016 at 3:20 pm | #

    Corey is reaching for a connection between Nietzsche and Scalia that is very weak. Though Nietzsche has cast a long intellectual shadow on both the left and the right, his greatest influence on the right was Hayek, a connection that Corey has elucidated quite well. I suppose the right’s fascination with the rule of law is prominent in Nietzsche, but that ideology has roots in the Talmud, long before Nietzsche, or even Plato and Aristotle.

  12. xenon2 February 14, 2016 at 7:51 pm | #

    ‘There is a special place in hell’, for all those who don’t watch all debates,
    and for those who don’t imagine Trump could someday be president.

    The other remaining Republican candidates are idiots.Trump some times
    make sense.Sanders will loose on the foreign policy issue.If you can get
    someone like Mearscheimer to advise him, please do so.Please?

    • Jim February 15, 2016 at 12:20 pm | #

      Cruz: screwball yes, idiot? Doubt that…

  13. Vic Norton February 15, 2016 at 9:21 am | #

    I don’t understand the Nietzsche references. You guys ought to read a bit of Nietzsche. He was absolutely anti-state. He and Hayek are philosophically unrelated—Nietzsche had no interest in economics.

  14. hhawhee February 15, 2016 at 9:24 am | #

    Hey, this death was “no big deal” (because we’re a Christian country) — Scalia’s words when commenting on the death penalty.

  15. Donald Pruden, Jr., a/k/a The Enemy Combatant February 17, 2016 at 2:01 pm | #

    I am an atheist, so I don’t believe that Antonin Scalia will go to Hell.

    So my hope for the condition for his rest is this: HE ATE AND DRANK HIMSELF TO DEATH; MAY HE FOREVER ROT!

  16. James Kabala February 19, 2016 at 11:31 pm | #

    The author implies that he did not get along with his liberal colleagues, but that doesn’t seem to be true – his friendship with Ginsburg is now well-known, and Kagan seemed to be the most visibly shaken of all the justices at today’s ceremony.

  17. Pierre Jonathan Lee February 20, 2016 at 1:01 am | #

    Scalia: a putrid, loathsome, corrupt, misogynistic, racist whore to corporate power. Those who defend his record are traitorous turds who should be buried alongside this ignominiously traitor to the law and to people — you are essentially saying FU to the law and to the vast majority of human beings. Just hope Thomas, Alito, and Roberts follow him very soon.

  18. Donald Pruden, Jr., a/k/a The Enemy Combatant February 22, 2016 at 9:34 am | #

    And may they follow Scalia in THAT order!

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