On Scalia & on the politics of his replacement, a comment by Political Reporter

The hard truth that all bourgeois respectable pundits avoid is that Originalism is the child of the politics of States Rights, as the political rationale for Jim Crow. How bitter is the reality that American Jurists swear not just allegiance, but fealty to an idea that has its root in post Civil War America, that produced the Klu Klux Clan as enforcer of that practice of States Rights! Its an ugly history of the enforcement of political conformity by terror, nothing less, with racism at its core!

The revival of States Rights, renamed, transmogrified and or grafted on to Originalism post Brown v Board of Education I & II is one of the marvels of America’s Public Relations revolution: all about the care and maintenance of political respectability. And certainly Antonin Scalia’s judicial career was fully vested in that re-framing of American racism.

See The Partisan by John A. Jenkins :


And John Dean’s Book The Rehnquist Choice:


for confirmation of the part played by Brown I & II in the political rise and legitimization of Originalism, and the careers of Rehnquist and Scalia as the first two Orginalists on the Supreme Court.

Antonin Scalia was a caricature of an Old World Paterfamilias: a bully who wielded a power that he judged unquestionable, and when it was questioned he lashed out, not with wit, but with the snarling, belittling patois of the old neighborhood. Not a legal giant but a small man in every way. A Neo-Confederate Originalist and an ultramontain  Catholic, who disdained the whole of the 20th Century. He was Opus Dei personified, in an American context, both political and religious. See Joan Biskupic’s near fawning biography of Scalia for historical background.


Also see Bruce Allen Murphy’s essay titled ‘Scalia’s an Originalist When It’s Convenient’:

‘When I teach about the First Amendment Free Exercise of Religion at Lafayette College, which used to occupy a routine pair of classes, I now wheel into the classroom a large white board that will occupy us for weeks, filled with all of the exceptions that the Court has created here restoring, in piecemeal fashion, the pre-Scalia, 1990 decision, world. I explain what has become the “Swiss Cheesing” of the First Amendment’s Free Exercise clause, allowing, among others, for claims to be considered for exceptions for federal prisoners and others being held in government institutions, for a religious group in Hialeah, Florida seeking to sacrifice animals in religious ceremonies, and for a small religious group seeking to drink ceremonial hallucinogenic tea from the Amazon. The string of exceptions to Scalia’s Smith rule has created so many holes that there is almost no cheese left. After the Hobby Lobby decision, I will have to make one more change to the top of my board, one which risks doubling the number of exceptions, adding next to the words “person’s Free Exercise of Religion rights,” the phrase “and closely-held corporations’ religious rights” ‘ – See more at: http://historynewsnetwork.org/article/156300#sthash.E4aYsaWS.dpuf

On the political context of President Obama appointing a successor to Scalia:the Republicans, led by the sclerotic McConnell, will put their political nihilism on full display, for an already utterly fed up electorate, to see in an election year. A question immediately arises, what happened to the Party of Reagan?  At The Financial Times the pundits Martin Wolf and Edward Luce have declared this historical moment a rebellion against The Elites, meaning themselves. Does guilty conscience even play a role here?

Is any of this surprising as the Republican Party has purged the Eisenhower Republicans, the remainder consists of Theocrats, Neo-Cons, Free Market Fundamentalists, and the successors to the Dixiecrat migration of 64-65. The House now led by the obscenely ambitious Closeted Randian Paul Ryan, adds an undefinable factor to the current political melodrama.

One marvels at the Republican party line of delaying the appointment of a successor to Scalia, as if they will be the victor in 2016. Will the 2016 presidential contest be a three way race between Clinton, Trump and Bloomberg?

Political Reporter

These two essay that provoked my comment:



About stephenkmacksd

Rootless cosmopolitan,down at heels intellectual;would be writer. 'Polemic is a discourse of conflict, whose effect depends on a delicate balance between the requirements of truth and the enticements of anger, the duty to argue and the zest to inflame. Its rhetoric allows, even enforces, a certain figurative licence. Like epitaphs in Johnson’s adage, it is not under oath.' https://www.lrb.co.uk/v15/n20/perry-anderson/diary
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