The Nihilist Republicans and Political Bigotry

By David K. Shipler

            Senate Republicans’ pledge to reject President Obama’s Supreme Court nominee who hasn’t been named contains as much intellectual integrity as trying to ban a book you haven’t read. It further politicizes an institution that works properly only above politics, when justices examine the law and the Constitution without regard to their personal preferences. And it could paralyze the Court on key cases, producing 4-4 ties that would let stand lower appeals court rulings but would set no nationwide precedents on matters that cry out for clear resolution.

The ironic fact that this would promote government’s dysfunction and further reduce its stature does not help so-called “establishment” Republicans who are worried about the protest vote being mobilized by Donald Trump and Ted Cruz. Those voters have been energized by the disdain for government, encouraged by the Tea Party movement and other radicals who could be called the Nihilist Republicans, as distinguished from the Responsible Republicans who used to try to govern when they won elections.

Justice Antonin Scalia’s body wasn’t even cold before Nihilist Republicans voiced their political prejudice by stereotyping as leftwing any conceivable candidate who could be proposed by Obama. This is the classic dynamic of bigotry: reject an individual—even an unidentified individual—because of his or her membership in a group. Reject because of the origin. Reject because of who supports the person. It is the same deviant logic that Trump uses to oppose letting Muslims into the country.

In a society that supposedly values individualism over collectivism, judging people by their collective associations rather than by their individual traits violates a basic American ethic—at least one we wish to see practiced.

A Constitution Informed by Social Change

By David K. Shipler

            If you spend time reading the Supreme Court’s majority and dissenting opinions in the landmark same-sex marriage case, a transcendent principle jumps out at you. It has little to do with the definition of marriage or the widening acceptance of homosexuality. Rather, it is the notion that society should be alive to its own injustices, even those unseen in the age when solemn constitutional texts were written. Later—nearly 150 years later in this instance—practices that were once acceptable emerge as violations of the rights set down at a very different time.

This is the crux of the ideological dispute between conservatives and liberals on the Court, and it is articulated in this case with unusual clarity. The conservative dissenters define liberty in the narrowest terms—to Clarence Thomas it means freedom from physical restraint and imprisonment, nothing more.

To Antonin Scalia, the clock simply has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose clauses banned the states from denying any person “the equal protection of the laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the provisions that the Supreme Court found were being violated by denying same-sex couples the right to marry.

Scalia scoffed. “When the Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.” Case closed.

Compare that with Anthony Kennedy’s fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not easily categorized as liberal or conservative; he is often a swing vote. Here, however, he effectively endorses the liberal concept of a living Constitution by emphasizing its place in a shifting world.