A chess tournament this Presidents’ Day weekend kept me busy, so I didn’t have the time to comment on the death of Antonin Scalia, but I can’t let this occasion pass without a post. Scalia was a major actor in American jurisprudence and politics, and also, I will freely admit, a particular object of my loathing.
To start: I have never been attached to the old saying “De mortuis nil nisi bene” (roughly, “Speak no ill of the dead”). If a person is abhorrent while alive, his death doesn’t change that. And if the deceased was a consequential personage in our national life, the obligation to speak realistically and frankly overrides any squeamishness about offending his survivors.
Scalia had many admirable qualities, which even liberal adversaries will gladly cite. He was brilliant, witty, charming and apparently capable of great personal warmth. I have no doubt that he loved his family. It’s less clear that his love extended to the rest of humanity. His legal opinions as well as his pubic statements consistently reflected a bitterly angry rejection of contemporary social change: a desire to turn back the clock to a time when men, women and people of color knew their places; homosexuality was stigmatized; and an unfettered capitalism impoverished society while enriching the rich.
Scalia had little sympathy for the less fortunate members of society. Take his love for capital punishment. Scalia once argued that it is perfectly correct, under the Constitution, to execute a man who has had a fair trial even if evidence of his innocence subsequently emerged. Scalia has claimed that his religious beliefs had no influence on his judicial decision-making, but that is not credible. For example, he cited the New Testament to assert that government “…derives its moral authority from God…to execute wrath, including even wrath by the sword, which is unmistakably a reference to the death penalty.” According to Scalia, capital punishment is the more acceptable for believing Christians because death is “no big deal.”
Am I being unfair? The common view is that Scalia’s opinions reflected a consistent judicial philosophy rooted in a fervent dedication to the Constitution of the United States. I see it differently. It is no accident that Scalia’s philosophy of constitutional originalism fits nicely with his reactionary political and social views. A rigid insistence on the strict meaning of our archaic Constitution provides a ready rationale for the rejection of an active government role in a changing society. This isn’t a partisan observation: the process of rationalizing political ideology through judicial philosophy is common to liberals as well as to conservatives and reactionaries. For a change, I’ll quote myself:
The different solutions to the problem of constitutional obsolescence offered by right and left serve the two sides’ respective ideological preferences. If you’re a believer in small government, it is convenient to insist on the relevance of a document that couldn’t possibly anticipate the myriad functions government would take on in the coming centuries. If you believe in active government, then you have to find ways to stretch and work around. Ideology precedes and shapes judicial philosophy.”
As evidence of his philosophic consistency, Scalia’s defenders like to point to his occasional decisions that would evidently clash with his political preferences; for example, his opinion that the burning of the American flag is protected free speech. Yes, people feel compelled to demonstrate consistency, but there are also plenty of occasions on which Scalia bent or tweaked his stated principles in order to rationalize his political preferences. John Roberts called him on one such occasion; the jurist Richard Posner has cited numerous others. One of Scalia’s tortured readings of the Constitution concerned the subject of…torture. The constitutional injunction against cruel and unusual punishment doesn’t apply to torturing terrorist or other suspects because, if they haven’t yet been convicted of a crime, the torture doesn’t constitute punishment—its purpose is to obtain information.
And, while there is ample testimony to Scalia’s personal likability, his opinions frequently overflowed with a bitterness that disdained norms of collegial civility. Scalia had no qualms about accusing his colleagues on the Court of views that were “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect” and “transparently false.” He didn’t limit his displays of contempt to Supreme Court justices. Legal scholar Peter Shane recalls an instance when, taking questions after a guest lecture, Scalia responded scathingly to an “audibly nervous law student” whose query indicated disagreement with Scalia’s views. In a brief, balanced assessment well worth reading, Shane acknowledges Scalia’s brilliance while noting that he deployed it mostly in the service of bad causes. Besides, Scalia
…was famously prone to lace his analyses with scorn and ridicule for those with whom he disagreed…. [His texts] are regrettable not only in their lack of professionalism but because they no doubt help to legitimate a corrosive form of intellectual discourse which confuses contempt with reason, and which has become all too common.”
So, let’s speak frankly of the dead. The late Antonin Scalia was a pioneering, tremendously influential jurist of the radical right. He was also a nasty, mean-spirited sonofabitch.