Justice Antonin Scalia is dead. His proteges will continue to wreak havoc throughout the country for decades. The longest-service justice at the time of his death, Scalia had more than 100 clerks work under him during his tenure. Those clerks (a couple token liberals among them, admittedly) went on to the highest ranks of the American judiciary and legal profession. There’s an army of Scalias out there.
With a couple largely symbolic exceptions (yes, Scalia supported flag-burners—he also joined the majority in Morse v. Frederick, which found that a high school principal could punish a student for unfurling a banner that read “Bong Hits 4 Jesus” across the street from the school), Scalia’s lifelong project was the advancement of the conservative movement, and however you slice it, he was staggeringly successful, especially considering how much of his tenure happened while that movement was being soundly defeated in multiple national elections (including one that he helped flip, in his side’s favor).
And Scalia’s project—the contortion of history and language to redefine modern conservative policy goals as the plain and obvious readings of our archaic founding documents—is as alive as ever, even if the makeup of the Supreme Court itself changes significantly. The movement may miss the way he gussied up his naked partisanship in a lawyer’s approximation of wit, but it will not any time soon lack for people willing to assert, with a straight face, that the Constitution presents a clear-cut and obvious prohibition against having the EPA regulate power plant emissions.
In a sense, his project wasn’t new. The Supreme Court has been conservative for a long, long time, and if Antonin Scalia had sat on the court for the last 200 years instead of 30, he would have written a concurrence in Dred Scott, the majority opinion in Plessy v. Ferguson, and a devilishly quotable dissent in Brown v. Board of Education. But he was the embodiment of the new kind of conservative jurist, who sought not just to maintain some favorable status quo, but (ironically) to use the courts to remake society. Before Scalia, the notions that Congress couldn’t restrict political spending, or that the Second Amendment guaranteed an individual’s right to private firearm ownership for self-defense, were widely considered absurd. Now they’re accepted precedent, with today’s liberals arguing how to legislate around the margins of those decisions.
So, yes, Scalia lost on the big issues where he was just too backwards to grind out a victory. He lost on sodomy laws and same-sex marriage, and was forced to live to see a world where gay people went mainstream. That can give us some satisfaction. But on nearly every question related to the power of money and people who have it to do as they see fit, Scalia won, and his victories appear pretty safe.
Meanwhile, there’s no liberal judicial project as ambitious and far-reaching as the one that produced Scalia. Assuming a Democrat wins the presidency in November, some of Scalia’s legacy will be reversed. But it will take decades to undo his toxic influence from the judiciary, if it can ever even be fully expunged.