Live from the Gehenna the Republicans Have Made for Themselves: : Cass Sunstein has just offered the opinion that Scalia ‘was not only one of the most important justices in the nation’s history...
...he was also among the greatest.’ Scalia’s greatness, Sunstein claims, ‘lies in his abiding commitment to one ideal above any other: the rule of law.’ Sunstein’s assessment strikes me as not merely wrong, but as the precise opposite of the truth. Scalia['s] badness consisted precisely in his contempt for the rule of law, if by ‘the rule of law’ one means the consistent application of legal principles, without regard to the political consequences of applying those principles in a consistent way.... Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law. Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute....
The key role Scalia played in the abomination that was Bush v. Gore would by itself make Sunstein’s assessment preposterous, even if that decision had been a rare instance in which Scalia deviated from his professed jurisprudential principles in order to produce a result he found politically congenial (it wasn’t). So how are we to understand Sunstein’s evaluation? I see three possibilities:
Sunstein has failed to notice that Scalia’s devotion to his professed jurisprudential principles was largely nominal.
Sunstein wants to be on the Supreme Court, and his repetition of right wing propaganda in regard to Scalia’s performance as a judge is a strategic gesture, intended to enhance his prospects.
- Despite their political differences, Sunstein and Scalia are part of the same legal and social elite, and members of this elite ultimately cover for each other, because being part of the elite trumps ideological conflict (some pun intended).
I think (1) is pretty much out of the question, and that a combination of (2) and (3) explains Sunstein’s encomium to one of the worst judges in the history of the Supreme Court...
I do not see (3) in operation here. Scalia's forte consisted of the "excellences", if you can call them that, of the talk-radio nutboy, rallying the troops via overstatement and deception. That is absolutely poisonous to Sunstein's bipartisan technocratic centrism...
