On Scalia, from today's NYT. So true, and so on point, that I leave this here to help explain this highly fraught situation we find ourselves within.
Ross Douthat in this morning's Times:
As absurd as it often feels to have Anthony Kennedy as the last arbiter of everything, in a way we’ve been weirdly fortunate in the court’s long-running 5-4-with-a-swing-vote split. It’s allowed both halves of our polarized republic to feel somewhat represented on the highest court, to feel as if they have at least a fighting chance in the majority of controversies, to feel as if there’s some legitimacy — not a lot, maybe, but some — to the decisions of our unelected guardians. (As much as liberals may hate the Roberts court for Citizens United, it also gave them same-sex marriage and protected Obamacare; as much as conservatives object to Kennedy’s ruling in Obergefell, they’re grateful for his ruling in Hobby Lobby.)
To have the intellectual godfather of the conservative bloc replaced by a liberal appointee would upset this balance, perhaps irrevocably. As it was for a time — and not a happy time — in the 1960s and 1970s, the court would simply become the Enemy to half the country, a vanguard force pulling the political order to the left.
This reality trumps the patterns of (very modest) compromise that enabled Samuel Alito, John Roberts, Elena Kagan and Sonia Sotomayor to win confirmation, and it makes it impossible to imagine Republican senators confirming an Obama appointee in the next 11 months. And it’s probably a good thing for the republic that they won’t: If there is to be a liberal replacement for a figure as towering as Scalia, if the court is about to swing sharply to the left, it’s far better for the judicial branch’s legitimacy if that swing follows a democratic election, a campaign in which the high court stakes are front and center in the race.
But because they will be front and center, Scalia’s death promises a war like none other between here and November, and an extra layer of insanity in a campaign already defined by radicals and demagogues.
The irony is that this kind of high-stakes collision of law and politics is precisely the thing that Scalia’s legal philosophy strained to curb and check and roll back, by promoting a more limited and humble vision of the Supreme Court’s role in our republic.
But for all of his importance, all his influence, in this effort he clearly failed — and what’s about to come will prove it.