Scalia and the Battle Royale

image Last night juxtaposed two examples of what one might characterize as the changing norms of American politics. On the one hand, the Republican primary debate appeared to dredge new lows of vituperative namecalling  and Battle Royale-style antics among the would-be Republican nominees. On the other hand, left-leaning journalists were unabashed in their glee at the death of Justice Antonin Scalia, not waiting even a few minutes to dance a rhetorical jig.

In some ways, neither behavior deserves particular reproach. While Trump’s entry and subsequent dominance of the Republican field has certainly accelerated the coarsening of political discourse among presidential contenders that began in earnest in 2011,  it is equally true that blunt and even offensive speech has a role in broadening the sphere of debate, particularly in the areas such as immigration in which the elite consensus was so rigidly disciplined  and so distant from the beliefs and preferences of the median voter.  For liberals as well, it seems a little hypocritical to ask for them to crack the Liberty Bell in honor of a dead Supreme Court Justice  when it is so pellucidly clear that no occurrence could have so advanced liberal priorities as the death of Scalia while Democrats still control the White House.

Nonetheless,  the incidents are illustrative of important changes in how politics operates, and in more than by merely demonstrating how much norms of civility have shifted in just a few years:  in 2012, for example, Matthew Yglesias, now of Vox, was roundly criticized by liberals for briefly indicating satisfaction with the death of Andrew  Breitbart, a much more marginal and reviled figure than Scalia. Much less such restraint was shown last night.

More important than this lack of tact  to me appears the ways in which liberals have successfully made intellectual respectability their almost-exclusive preserve. One could-and many have- blame the “clown car” flavor of the current Republican primary on Fox News, and the development of conservative politics as a lucrative entertainment industry, from Limbaugh to Glenn Beck to, in recent years, Trump himself. This is, essentially, the argument that the political scientist Jonathan Bernstein has made over several years in arguing why Republicans have become a “post-policy party” which can win elections but has an almost impossible time translating its priorities into governance. Surely this is partially true and responsible for some of the difficulties facing Republicans in governing, as are the internal splits over immigration and the preservation of the existing (old-age, primarily) welfare state that Trump has so adroitly exposed.

But another clear driver of Republican dysfunction at the national level is the systematic exclusion of conservative ideas from mainstream forums in which they could become respectable, be knowledgably debated, and be transformed into implementable policy.   No doubt, there exist individual “wildlife refuge”-style enclaves for conservative thinkers –  AEI, Heritage, Cato, and the like, though each of these struggles to maintain enough respectability that their productions could, for example, be cited as a legitimate source in an academic paper,  and there is at least some evidence that scholars associated with such organizations are discriminated against in the academic job market. In colleges themselves and increasingly in elite media such as the New York Times, there is often not even the pretense of dispassion towards the political valence of beliefs.

Scalia was almost unique among famous, influential, active conservative policymakers in articulating a view of governance  that was well known and sufficiently internally coherent to be at least argued against by liberal scholars.  Constitutional originalism does not particularly appeal to me – the whole point of law is that you don’t need to aim for intent, you argue from the text itself – but it is an ethos, and one that most people feel intuitively would need to be countered or addressed.He was hated by liberals not merely because of the power he exerted, and his death is celebrated not merely because it will solidify Obama’s influence over the coming years, but because he appeared to make conservative ideas respectable and legitimate, worthy of discussion and debate.

Democrats are able to move their policy agenda forward when they are in power, and to center the content of their primaries on the details of governance, not because of the unique wisdom of Democratic politicians or voters, nor because there is no liberal  entertainment complex eager to sideline the agenda – take a look at Salon – but because the central intellectual organizations of our society- not merely universities, but foundations and the most respectable think tanks, magazines and newspapers,- work tirelessly to clarify, maintain, develop and make implementable liberal priorities and to articulate to the public the liberal understanding of the world.

Recently, conservatives and some freethinking liberals have  pushed the exclusion of conservative ideas from universities in particular into mainstream discourse. But this recent controversy over what constitutes  excessive policing of thought and the nature of open debate only occurs because the dominance of liberals over the institutions they control has become  so totalizing and complete. Fighting their way back into those institutions, whether by angry reproach ala Trump or the slow drip drop of incremental science, is likely largely to fail, because it ignores that the organization of respectable institutions against conservative thought and respectability is not accidental  but central to their contemporary purpose.

Scalia showed  how prominent positions outside academia still exert intellectual as well as political significance, and conservatives concerned both over their exclusion from respectable thought and over the apparent degradation of conservative capacity for governance- or just over one too many “your mother” jokes at the next debate- would do well  to muse over the means by which he exerted influence as well as that influence itself.


15 thoughts on “Scalia and the Battle Royale

  1. “Constitutional originalism does not particularly appeal to me – the whole point of law is that you don’t need to aim for intent, you argue from the text itself ”

    I know this was not the main point of the post, but I think you give a misleading impression of Scalia’s jurisprudence. As I understand it, Scalia-style originalists don’t care at all about what anybody involved with enacting a law intended to achieve. Rather they simply want to interpret the text according to the meaning of the words at the time they were written down. This is important because the meaning of words and language tends to change over time.

    This Wikipedia article explains the distinction as well:


  2. Scalia can be credited with popularizing, even amongst lefties, the idea that judges cannot argue or discern what the “intent” of a law was.

    For a very long time, judges have used legislative materials—debates, previous revisions of bills, public speeches—to discern what the intent of a certain law was, in order to see how it applied in a given situation.

    Scalia correctly championed the notion that this is nonsense; the only thing the legislature passed was the law itself; everything else is just the momentary recorded statements of politicians trying to get it passed or not passed. And one individual legislators opinion of what the law he voted for is intended to do cannot mean more than any others, so you’re really just picking and choosing which intent you (the judge) likes best, which means you’re no longer neutrally interpreting the law.

    Now, plenty of judges still use “legislative intent” as an interpretive method, but many have given it up, including many lefty ones. That’s all Scalia. He didn’t come up with the notion, but he became it’s most noted and strident advocator.

    To move the entire American legal interpretive process as he did, well, that’s a huge legacy all by itself.

    Liked by 1 person

  3. This is extremely good, but I think we need to be careful about accepting the terms of debate set by the intellectual left. In this view, conservatives and libertarians are marginal intellectually because they simply behave badly, can’t view matters dispassionately, and so on. In this view, we deserve to be relegated and dismissed.

    I suspect the explanation is much more structural. The American state has been central in delimiting network and communications technologies since the middle of the last century. There were the major networks, the fight against cable, and of course the state universities. Liberals successfully captured all of these institutions and regulated their content with all of the old justifications – regulation of quality, protection of consumers, guaranteeing freedom of thought (for those inside the club).

    Because conservatism and libertarianism have been resurgent in this environment of liberal control, they always flank from illegitimate outlets. Blogs, AM radio, cable news networks, news magazines, think tanks. Despite the fact that about 2/3 of the electorate agrees with the opinions expressed over those media, liberals view the fact that they’re relegated to less august institutions proof of the illegitimacy of the ideas.

    And that’s exactly the problem with the liberal intellectual consensus–it conflates authority with truth–while flying an egalitarian flag.

    Liked by 1 person

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