World View: Attempts to delay replacement of Antonin Scalia strike ironic note

When biblical literalists champion the original text of the Bible as the only true source of meaning, their purpose above all is to give an unchanging certainty – almost invariably conservative – to religious teaching. The idea of the “living” Bible whose message adapts to an evolving society and mores threatens traditional authority as much as it embraces new values for new times.

Antonin Scalia, the longest- serving justice of the United States supreme court, who died this week, was the Ian Paisley of jurisprudence. His intellectual heft, profoundly reactionary politics and successful campaign to bring "originalism" – which seeks to interpret the US constitution as it was understood at the time of its adoption – and "textualism" centre stage in US legal practice echoed the reactionary certainties propounded by evangelical Republicans now dominating the party's rank and file. Scalia happily boasted of his adherence to a "dead" constitution.

Long-running divisions

The argument is central to the long-running divisions over decades that have polarised the court. If lawyers had been locked in to literal interpretations of the constitution, then much of civil rights law would never have emerged – rights to privacy, abortion, marriage equality, equal voting rights.

And, crucially, the evolution of the federal state’s right to set limits to the conduct of states would never have emerged in the critical 1930s New Deal and 1960s civil rights eras . These rights arose from liberal judges’ radical, expansive reading of the logic of the constitution’s “commerce clause” which allows Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”.

This clause, at the heart of the states’ rights debate, is now the legal basis of most of the federal government’s civil rights legislation and social programmes. An attempt to roll back what Scalia and others said were “imagined rights” implied in the commerce clause was central to the failed attempt to block Obamacare.

Scalia contended originalism is ideologically neutral and would cite some of the opinions he backed at odds with his stance as “a confessed law- and-order social conservative”. Among them, opinions favouring criminal defendants and plaintiffs seeking punitive damages.

“We have now determined,” he said with his renowned sarcasm in Philadelphia in 2004, however, “that liberties exist under the federal constitution – the right to abortion, the right to homosexual sodomy – which were so little rooted in the traditions of the American people that they were criminal for 200 years.’’

Although some jurists took up the challenge to find in the constitution’s words language to support liberal values, originalism has in practice been a reactionary doctrine. Emboldened by what he saw as the original understanding of its 18th- and 19th-century framers, Scalia justified the death penalty for minors and the mentally handicapped, the right to bear arms, and implacable opposition to abortion. And he argued that the equal-protection clause wasn’t intended to apply to discrimination based on sex or sexual orientation, notably in his dissent from June’s decision establishing a constitutional right to same-sex marriage.

Fellow judges berated

In doing so he has berated fellow judges for being activists usurping the role of legislators to create rather than just interpret law, much as our own Supreme Court berated TDs for their failure to enact abortion law leaving the enforcement of constitutional provisions to a reluctant court.

He admitted that he was not always utterly consistent, calling himself a "faint-hearted originalist", adding that he could not imagine "upholding a statute that imposes the punishment of flogging" which the constitutional framers approved. Arguably that inconsistency was most manifest in the ruling in Bush v Gore which he wrote for the majority, outrageously depriving Al Gore of the presidency.

Scalia was appointed to the supreme court 30 years ago on a 98-0 “advise and consent” vote in the Senate, despite an awareness on all sides of his deeply conservative views. Senate Democrats were simply observing their constitutionally mandated role to fairly assess the legal competence of a presidential nominee rather than running a measure over his/her ideological position.

Today partisanship in Congress is so deep that such unanimity is impossible, and Obama faces an uphill task in nominating a successor. The Republican leadership is insisting the mandate has run out – whatever the constitution may imply – and that the nomination prerogative should pass to his successor.

The irony should not be lost on Scalia’s ghost – but then “faint-hearted” originalism was permissive of considerable inconsistency when politics required it. psmyth@irishtimes.com