We Need to Stop Leaning into Scalia’s Punches

by Doug Kendall, President & Founder, Constitutional Accountability Center

Liberals really need to stop leaning into the punches being thrown by Justice Antonin Scalia.  While Scalia claims he follows the Constitution as written and adheres to the values of our founders, the most frequent come back from progressives is:  “Wait, wait, wait, judging is so much harder than that.”   Rather than pointing out that Scalia and his conservative colleagues frequently twist the law and depart sharply from the Constitution’s text and history, this “judging is hard” argument just reinforces the public’s misperception that conservatives follow the law and progressives make the law up.  What progressives must do, instead, is respond to Scalia and his cohorts by offering a different, more inspiring and appealing account of our Nation’s charter.

The latest example of this back and forth played out this week in dueling opinion pieces in Thursday’s Washington Post.   Conservative columnist George Will’s “The danger of a government with unlimited power” rehearses the standard conservative line of attack.  Conservatives, Will argues, want to return to the limited government enshrined in the Constitution by James Madison, while progressives want a “living, evolving document” that “frees government from limitations” and serves as “an emancipation proclamation for government, empowering it to regulate all human desires as needs and hence as rights.”

Meanwhile, the progressive response is found in a piece called Souter’s Challenge to Scalia by columnist E.J. Dionne, running right above Will’s, that says, in effect, that judging is a lot harder than Scalia and other conservatives say it is.  Citing a recent Harvard commencement speech by Justice David Souter, in which the former justice is deeply critical of Justice Scalia and his “originalsim,” Dionne rehearses the progressive argument about how difficult it is for judges to interpret the Constitution’s broad and open-ended terms, and chose among competing constitutional values.   Dionne suggests that Souter’s speech should be” the philosophical shot heard ’round the country,” and he encourages a nationwide debate about “which approach is more trustworthy.”

With respect to both Dionne and Justice Souter, that’s a sure-fire recipe for progressives remaining in second place in a two-team battle over the future of the Supreme Court.  It’s not that Dionne’s (and Souter’s) points about the Constitution’s broad and open-ended terms and competing values are wrong.   They are learned and erudite.  But they are not an effective rejoinder to Scalia’s vision of the Constitution and the Court’s role under it and they can be counterproductive in a political debate framed by the conservative attack on “liberal judicial activism.”

What’s most disappointing about Dionne’s piece is that Dionne himself has been among the most influential and forceful proponents of a new and better progressive message about the Supreme Court. In a brilliant series of prior pieces, Dionne has called on progressives to have an “honest brawl” with conservatives about the future of the Supreme Court, and show that “the threat of judicial activism now comes from right, not the left.” “It is conservatives, not liberals,” Dionne adds, “who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation.”

Now is the time for progressives to have that honest brawl about why the Constitution itself points in a progressive direction.  The Court’s  monumentally wrong ruling in Citizens United v. FEC, giving corporations the right to drown out the voices of We the People in the electoral process, coupled with the fringe ramblings of Rand Paul and the Tea Party crowd, have laid bare the underbelly of the conservative legal project.  We need to explain how the Constitution protects “ We the People,” not “We the Corporations,” how it empowers the federal government to address national problems like health care and civil rights, and how the Amendments adopted by Americans over the past 220 years should be revered for making the Constitution better, not repealed or underappreciated.

We can keep complaining that Justice Scalia is being simplistic and that judging is hard in conversations in faculty lounges and law journals.  But when we’re fighting publicly with conservatives about the Constitution, we should be loud and firm in asserting why the document itself points to the results we seek.

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