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How Antonin Scalia's death (and life) exposed cracks in our so-called democratic system
This is a story I wrote for the Village Voice in March of 2016, when Donald Trump was still a running joke on late-night television and our so-called democratic system had yet to suffer the possibly fatal insult of Mitch McConnell’s unprecedented refusal to even hold a hearing for Barack Obama’s appointment of Merrick Garland to replace Justice Scalia, who had died of a heart attack just two weeks before the piece was published. With the Supreme Court’s hearing of the affirmative action case yesterday, something for which I’m certain Scalia would have wished to be alive for — it is probable that Roberts would have chosen him to write the opinion sending his career-long bete noir to yet another precedent-ending grave — I thought the piece worth reprinting here.
Imagine with me, if you will, a trip through the Halls of Justice: That light down there at the end of the Hall is a door beyond which a long black car awaits. Imagine climbing into its leathery recesses and being driven to a nearby tarmac, where you are greeted by a corporate Gulfstream or Learjet and whisked away, recumbent on still more buttery leather, to capacious hotel suites in Palm Springs and Park City and Napa and Jackson Hole; in San Juan and Sydney and London, Lisbon, and Lima; in Innsbruck and Zurich (three times in the last few years!). And then imagine this: You won’t have to lift a single thick, soft, pink finger in the direction of your wallet, because all your expenses are paid.
Now imagine doing this 258 times between 2004 and 2014 — 23 such jaunts in 2014 alone. You’re wined and dined by wealthy corporate chieftains and partners in powerful D.C. law firms, people like your “friend” C. Allen Foster, a principal in the white-shoe Washington shop of Whiteford, Taylor & Preston who regularly appeared before the Supreme Court.
You’re often taken on “hunting” trips: After you are led into a West Texas field, game birds are released from nearby pens; you shoot them out of the sky with your expensive shotgun. Back at the baronial “hunting” lodge you enjoy a savory meal prepared by a gourmet chef, followed by dessert and maybe port wine and cigars in big leather chairs next to the roaring fireplace. There you sit, discussing World Affairs and Big-Time Politics with 35 or so other wealthy swells, your confreres in a secret hunting society called the International Order of St. Hubertus, a cabal founded in Austria in the 1600s whose motto is “Deum Diligite Animalia Diligentes,” which translates darkly to “Honoring God by Honoring His Creatures.”
Now imagine retiring to the presidential suite and lying back on a king-size bed and crossing your hands on your chest and not waking up. Ever. Imagine having your death certificate signed by someone 65 miles away who never laid eyes on your dead body. Imagine never having an autopsy performed and having your unexamined body spirited away in a silver Cadillac to another private jet before making the journey back to that great Hall of Justice, where it will lie in repose until you are hauled away in yet another long car and buried in the ground.
Got all that? Congratulations, you now know what it felt like to be (and then no longer be) the Pope of Capitol Hill, His Honor Justice Antonin Scalia. He earned $220,000 a year yet lived like a Trump — wallowing in a swank, all-expenses-paid lifestyle for his seemingly endless thirty-year tenure on the Supreme Court. The only thing missing was a little white glassed-in Popemobile to ferry him to the well-prepped fields where he did his killing. And all he had to do in exchange for this life of marble and gilt was sit there swaddled in his black vestments and produce reasons for voting the way he was expected to vote.
Scalia’s benefactors were doubtlessly pleased by his career on the Court, but they sure as hell aren’t pleased with his unexpected passing. Justice All Expenses Paid heard Gabriel’s trumpet precisely one year too soon for their tastes. After all, the person tasked with appointing his successor is a black man the St. Hubertus types have no respect for and whom they do not trust; meanwhile, the person most likely to be the GOP’s nominee to replace him as president is a bloviating bivalve whom they trust and respect even less, if that’s possible.
In truth, however, they are impaled on the horns of a dilemma created nearly 250 years ago. Think about it. Practically our entire system is a series of gigantic rolls of the dice, depending on elections to fill the two main bodies through which we exercise self-governance and do stuff like nominate and confirm Supreme Court justices. And although there was a lot of high-minded speechifying and writing by the Founding Fathers about the necessity of a well-informed electorate, as we can see — daily — this concept has been completely jettisoned by at least one of our political parties. “I love the poorly educated!” burbled Trump last week.
Last Thursday’s Republican primary debate showcased the party’s race to the bottom in its scramble for gullible dummies. The Washington Post has been using the Flesch-Kincaid grade level index to measure the speeches given by candidates: After the South Carolina primary, that analysis put Trump at a fifth-grade level, Rubio at eighth grade, and Cruz, the Harvard man, way up there at ninth grade. The same assessment done after the Nevada caucuses had Trump at a second-grade level. On February 25 the Donald redeemed himself, climbing a full grade level to third grade. Asked how he would deal with expelling so-called illegal immigrants, Trump explained: “They will go out. They will come back. Some will come back.” He then reprised his nuanced position that “We will make America great again!” Again. And again. And again.
The point has been made before that the Republican Party has by tradition had little patience with the democratic process. So what do you do when you don’t trust the process and you want to win at all costs? You put in the fix. Indeed, the recent history of the GOP is a series of blatant attempts to short-circuit the electoral process, from the passage of so-called voter ID laws in state after Republican state to the cynical gerrymandering of congressional districts to safeguard their margins. And now we have the devolution of political rhetoric to the level of schoolyard taunts soaked in blatant appeals to racism, sexism, and xenophobia.
There is only one teensy little weakness in this plan to turn the elections into a Republican casino where the house always wins: demographics. It is one of the delicious ironies of American political life that the Republican primaries are exposing older, white, undereducated, angry voters as not just the “base” of the party, but the party itself. There aren’t that many of them now, and there will be fewer and fewer of them as the years and decades tick by. And the demographic scale is a lot harder to fix than a Florida vote count. Its numbers are fixed on a higher plane. Cemeteries will swallow up one older angry white Republican voter after another. Immigration will swamp reactionary Republican chances by populating the electorate with more and more and more brown and black people who cannot be trusted to vote the way the angry white guys want them to vote. Trump promises to Round Them Up and Send Them Back, to Keep Them Out by building a wall across our southern border, but not even Trump can build a wall tall enough to stem that inexorable tide.
The Republicans know there remains at least one place in our little-R republican system where scale-tipping is easy as pie. The firewall they have been working on building for about thirty years is around our third branch of government, the courts, and most importantly the Supreme Court. They have done this by appointing water carriers like Justice All Expenses Paid to do their bidding. This is why you saw the temper tantrum thrown less than an hour after Justice Scalia was pronounced dead. Kentucky Senator Mitch McConnell’s pledge that the upper chamber would not take up any nominee for the Court put forth by President Obama tells you everything you need to know about the way the Republican Party intends to deal with its inevitable demographic demise. They’re going to do what they do best: put in the fix.
They’ve been at this since they tried to put Robert Bork on the Court back in 1987. And the subsequent results speak for themselves: In Shelby County v. Holder, they negated the only clause in the Voting Rights Act that had any teeth. In Citizens United, they loosed corporate and big- donor money into the political system. In District of Columbia v. Heller, the Supremes upheld an appeals court ruling overturning a ban on handguns in the federal city (a ban that had fed the right-wing delusion that what guns really protect you from isn’t a burglar or mugger but your own government, as it tries to take them away). They opened the door to weakening the First Amendment with a decision in the Hobby Lobby case that pretty much allows you to invoke religion to justify not following the law. In Ledbetter v. Goodyear Tire and Rubber, they severely limited the ability of workers to sue employers under the 1964 Civil Rights Act. In Walmart Stores Inc. v. Dukes, they refused to certify a class-action suit by 1.6 million women claiming gender discrimination in hiring and promotion. And they are poised to take on two issues we have thought for decades to have been settled: the right of workers to form unions and bargain for wages and working conditions and the principle of one man, one vote.
And they’re just getting started. Obamacare, Social Security, Medicare, Roe v. Wade, same-sex marriage, civil rights — the list of their targets is precisely as long as the progressive agenda. It was Scalia, you’ll recall, who recently suggested from the bench in a case on affirmative action that black students might do better going to colleges that are less challenging than, say, the University of Texas. It’s a certainty that a Republican dream court will keep capital punishment in place — and as long as you’re killing these guilty bastards, what’s wrong with torturing them beforehand if it’s all done in the name of “national security”?
The Supreme Court is the Republican Party’s kind of democratic institution. It isn’t subject to those dumbass voters you have to cozy up to every couple of years. It’s not answerable to anyone except itself. All you have to do is load it up with a few more gun-totin’ zealots like Scalia, a man charged with defending the division of church and state who couldn’t help braying about his Catholic faith even as he was deciding cases like Hobby Lobby in favor of the religious faithful on spurious constitutional grounds.
If we ever needed a mass movement in this country, it’s now. It’s not an exaggeration to say that the future of our republic depends on who gets to appoint the next Supreme Court justice, and the one after that, and the next one, too. If we don’t stand up for ourselves now, we may as well sit back and watch this country fade away into a miasma of decay, corruption, military intervention abroad, and xenophobic hostility at home. We’ll be letting the angry white guys dictate where this country is going for the next two or three decades — and that would be a dark and dangerous place. It’s time for a general strike and a march on Washington. It’s time for boots on the ground.
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