OK

Yes, Antonin Scalia is bored to hell with being an Associate Justice of the Supreme Court. Hence the trollish dicta (hat-tip: Rachel Maddow) ejected from his pie hole during oral arguments these days. Having failed to become Chief Justice he now wants to out-Rush Rush Limbaugh.

Tony is a very smart guy. Smart enough to know that post Bush v. Gore his Originalism schtick is no longer taken seriously. Moreover, the question can and perhaps is being raised as to whether Scalia ever bought-in to Originalism as opposed to merely using it as intellectual cover for out-and-out reaction.

Originalism has always been nonsense. In a continent-spanning nation sporting computers, jet aircraft, television, and instantaneous global communication, the milieu out of which today's Constitutional issues arise, saying that the Constitution can only be interpreted by figuring out the original intent of an 18th century mind is bullshit. As any competent historian will aver, you never obtain a lived understanding of the historical actor's times, you but understand your epoch's reconstructed documentary approximation of that time. An historical understanding has both more and less information than the lived understanding of the historical actor and hence does not establish equivalence to it. Even if you nail the sought after reconstructed-understanding, its relevance to the case at hand is often a stretch at best.

But Originalism is a brilliant dodge that has served Tony well. For to refute Originalism and not seem to simultaneously be attacking the founders is nigh on impossible. So originalism was Tony's way to stand athwart the path of history and yell stop. But with Bush v. Gore, I believe, Tony's ambition to become Chief Justice consigned Originalism to the dustbin of history.

An apolitical Scalia of 2000 should have told the plaintiff in Bush v. Gore that nothing in the Constitution nor Federal law, sans racial discrimination via the Voting Rights Act, allows a Federal court to tell a state how to handle an election. And had the plaintiff been Al Gore, I'm sure Scalia's vote and voice would have said as much in an eye-blink. But in voting to make Bush president was Tony casting his own vote to become Chief Justice? What of his little controversial duck-hunting conversation in early 2005 with Dick Cheney? Did that have more to do with promoting himself as Rehnquist's replacement than the collusion with energy companies Cheney wanted to keep secret? Scalia couldn't have known the hunting trip would make news and create a stink strong enough to take him out of the running for Chief Justice when Rehnquist died that September. Yet when the youngish John Roberts was sworn-in as Chief Tony had to know the game was up. Originalism had been pissed away with no subsequent "Scalia Court" legacy as a replacement. So now as Tony looks to celebrate his 77th birthday on March 11th what is left but boredom and trolling?

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