I have written this piece for Slate. It begins:
Over the next few months, the Supreme Court seems poised to deliver a crushing blow to public sector unions, allow more purges that remove eligible voters from the rolls, limit anti-discrimination laws protecting the LBGT community in the name of protecting religious freedom, and uphold the latest version of Trump’s travel ban. And while the court may, for the time being, put the brakes on the most egregious forms of partisan gerrymandering, that result may be short-lived, as rumors recirculate that swing Justice Anthony Kennedy could soon announce his retirement. That would give President Trump the chance to put another judge like deceased Justice Antonin Scalia on the court, creating a more solid five-justice conservative majority.
Indeed, contrary to the argument of a recent Linda Greenhouse New York Times columnproclaiming that Justice Scalia’s legacy is fading, his legacy only seems to be growing. Over the next few decades, Justice Scalia is likely to have greater influence in death than life.
People often ask me why the left never gets as excited about control of the court when it comes to voting and political action. The answer is that the court’s decisions have been mostly in the middle thanks to swing justices like Kennedy—about half the court’s decisions in big cases have been more liberal, about half more conservative.
All of that stands to change in the next few years. Even if Justice Kennedy decides to hold on, and Democrats miraculously can block another Trump appointment to the Supreme Court, the stacking of lower-court judges with Scalia acolytes will have effects on all Americans for generations. That may finally wake up the left to the power of the federal courts. By then, though, it may be too late to do anything about it.
Justice Scalia’s fading legacy? I’m afraid not.