Scalia: The Passing of a Liberal Provocateur, a Moment for Pragmatism

Law concept: partial birth abortion
Law concept: partial birth abortion

Unusual and unnecessary written commentary issued prior to hearing arguments in a landmark case. Alleged vulgar gesticulations on the steps of a church. "Quack quack" as a closing comment when defending his controversial refusal to recuse himself from a case involving his duck-hunting buddy (Dick Cheney), secrecy, and corruption. By all accounts Antonin Scalia enjoyed riling folks.

There was plenty with which to disagree. Conservative believers in limited government and judicial restraint should be the most upset. First, he supported the unpredictable use of federal power to override state power. Example: Bush v. Gore highlighted Scalia's eagerness to flip-flop on his long-professed commitment to federalism and to, from the bench in DC, override a state supreme court ruling on a matter of state law (so specified by the U.S. Constitution Art II, Sec 1, Cl 2). Remember? 585 law professors signed a full-page denunciation of Bush v. Gore in the New York Times.

Next, he was a liberal interpreter of the Constitution. In a 2008 Second Amendment case his rationale for disregarding text of the Constitution prevailed. He was not a strict constructionist. Well, few USSC justices ever have been, really: the power of the Supreme Court to tell elected representatives when they are out-of-bounds is based on the Court's own decision in Marbury v. Madison. Yes, the power to interpret the Constitution is based on an interpretation of the Constitution. "Strict constructionist Supreme Court justice" is a therefore a bit of an oxymoron. They all interpret. Scalia interpreted a lot.

Finally, as explained in this journal article, Scalia did not favor devolving power from big federal government bureaucracy to citizens. Congress passed environmental protection laws specifically allowing citizens to sue - not to collect damages, but to fight for their health and security by upholding the law. Scalia's open and visceral anti-environmental emotions drove him to write an article imagining - and when in power, to implement - a creative new vision of standing requirements. This created roadblocks to citizens enforcing environmental laws that are a matter of life-and-death. The irony? Citizen enforcement is cheaper to the taxpayer, more democratic, and allows for LESS pervasive and permanent federal bureaucracy to monitor, regulate, and enforce environmental, health, and safety rules.

To sum-up: do you want to breathe? Drink water? Pay lower taxes and have more power as a citizen to fight for your health, safety, and security, within a predictable system, consistent with the U.S. Constitution? Then Scalia's legacy is not one to embrace.

What will come next? Among other things, a major decision - an unprecedented attempted interference by the Court - involving obsolete 18th Century technology and mass death, suffering, disease, and national security. Now is the time for traditional American pragmatism, not ideology, from whomever is nominated and confirmed as a replacement. The new SCOTUS justice will help decide the safety of the air we breathe, among other weighty cases affecting generations to come.

It's a time for real conservatism in a Supreme Court nominee: conserving democratic functioning, conserving Constitutional structures, conserving constructive federalism, and, in the spirit of (old school) Republican Teddy Roosevelt, conserving environmental life-and-spiritual support systems. Disrupting these traditions is not pro-life, pro-Constitution, nor pro-business.

It's also a time for conserving decorum and dignity. It used to be uncontroversial to suggest that a justice on the highest court have a consensus-building and calming disposition and cool predictability in their application of the law to disputes. In two decades of working with businesspeople and entrepreneurs, I've never met one (of any party) who would dispute that these are virtues they value from someone adjudicating a dispute of any kind.

Judge "Sri" Srinivasan, having worked in both the Bush and Obama administrations, approved by the Senate 97-0 to the DC Court of Appeals in 2013, and reknowned for being a calming, professional pragmatist rather than an idealogue, is an example of the kind of person needed for this time and place.

To sum-up, and with all due respect: an unrestrained, divisive, liberal interpreter of our laws who clearly delighted in antagonizing others has passed. This is a chance for pragmatism and cool-headedness to prevail in upcoming decisions. If you're fairly traditional in that you are pro-prosperity, favor predictability, and believe in conserving natural systems that support life - and, most importantly, a pragmatist - we should look with optimism to what comes next.