The Problem With Justice Scalia

Insofar as a member of the federal judiciary has a "rock star" it is almost certainly Justice Antonin Scalia. Scalia is feted at Federalist Society gatherings and he enjoys giving speeches at law schools and to civic organizations across the country. He is beloved by conservatives for his acid pen -- his dissenting opinions have been collected by an acolyte into a book -- although Scalia says, disingenuously, that his dissenting opinions are written for law students (who will read them in their casebooks). Don't believe it: Scalia's dissents are written for Scalia. See how clever I am, I can really turn a phrase.

So given Scalia's love of attention, it was not surprising that he gave a long interview to New York magazine shortly before the kickoff of this year's Supreme Court term. A couple things stand out about Scalia's interview. First, he lives in a conservative media echo chamber:

What's your media diet? Where do you get your news?

Well, we get newspapers in the morning. I usually skim them. We just get The Wall Street Journal and the Washington Times.

We used to get the Washington Post, but it just ... went too far for me. I couldn't handle it anymore. It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.

So no New York Times, either?

No New York Times, no Post.

And do you look at anything online?

I get most of my news, probably, driving back and forth to work, on the radio.

Not NPR?

Sometimes NPR. But not usually.

Talk guys?

Talk guys, usually.

Do you have a favorite? You know who my favorite is? My good friend Bill Bennett. He's off the air by the time I'm driving in, but I listen to him sometimes when I'm shaving. He has a wonderful talk show. It's very thoughtful. He has good callers. I think they keep off stupid people

So, Scalia listens only to other conservatives' arguments in his media diet -- I suppose this makes sense because he bought into the (inane) conservative talking point about the government can make you eat broccoli vis-a-vis the Health Care case (Obamacare's individual mandate), actually bringing it up at oral argument. Scalia has reached the stage of intellectual stasis -- I know what I know because I know it. The good news, however, is that most Americans don't watch much partisan political news at all, and those who do have a more eclectic "diet." (Sidenote: Scalia does not like Facebook at all).

The other point of note -- there are many but I'm going to stick with just two -- from the interview with Scalia is on LGBT rights:

Whatever you think of the opinion, Justice ­Kennedy is now the Thurgood Marshall of gay rights.

[Nods.] I don't know how, by your lights, that's going to be regarded in 50 years.

I don't know either. And, frankly, I don't care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here's Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I'm dead and gone, I'll either be sublimely happy or terribly unhappy.

Sorry, not LGBT rights, "homosexual rights."

I actually believe that Scalia does not care much about his historical legacy. Scalia's problem, one that has gotten worse as he gotten older and crankier, is that he thinks he's a little bit smarter than he actually is, and is writing for an audience, a contemporary one. Indeed, contrary to popular opinion, many legal scholars believe that Clarence Thomas presents a more sophisticated conservative judicial philosophy than Scalia. As Scalia alluded to in the New York interview above, he does not care about how history will judge him, and history will not judge him kindly.

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