At Monday’s Philosopher’s Guild meeting, RF posed the question: Can a person be good and still take pleasure in someone’s having passed? I said yes, at least with respect to a public person. I mourn the loss of life and feel sad for family and friends. Soon after, the public persona takes over. With an appropriate amount of respect, the person becomes fair game.
So, history will judge Antonin Scalia, and the verdict will likely be mixed, and will come after a long while. For me, though, three negative attributes stand out. They are: (1) The originalism conceit; (2) An abysmal lack of judicial demeanor; and (3) A lack of evident empathy. (For an insider’s take, read after I wrote this piece, read Resetting the Post-Scalia Supreme Court by Linda Greenhouse.)
Originalism represents a line of judicial thinking which says we properly judge constitutional claims using knowledge circa 1787. (If an issue involves an amendment to the Constitution, originalism dictates that the Court view the world as it was when the amendment was ratified.) In theory, judicial modesty supports this approach. Who are nine unelected people to decide whether and how the 1787 Constitution should be applied, when they did not write it?
I see two problems with originalism. First, I don’t know whether the drafters of the Constitution wanted the document to be “alive” or, as Justice Scalia characterized it, dead or enduring. What if the drafters intended for it be a living documents? What if they thought that notion was so self-evident that they never addressed it?*
Second, can we assume words had the same meaning, for everyone, 230 years ago? Yes, the drafters did not contemplate same sex marriage or electronic communications. But they knew about weapons, and a review of the opinions in DC v. Heller, No. 07-290, demonstrates plenty of disagreement about what words meant back then. And in plenty of other cases, especially in those areas which involve federal v. state power, there were 18th century disagreements. It’s awesomely arrogant to assume everyone agreed back in the day, and that we can know what they all believed.
Regarding judicial demeanor, let me be plain. It’s wrong for any judge to associate with a litigant while a case is pending. Nonetheless, Justice Scalia went on a hunting trip with Vice President Dick Cheney, flying on Air Force Two, while Cheney v. U.S. District Court for the District of Columbia, 03-475, was pending before the Court. Justice Scalia failed and refused to recuse. (Here are details from the L.A. Times, written by David Savage in 2004, when the events transpired. And here, for deep divers, is an excellent article from the Nebraska Law Review, Ducking Recusal: Justice Scalia ‘s Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), and the Need for a Unique Recusal Standard for Supreme Court Justices.)
I also found Justice Scalia’s demeanor on the bench, in his written opinions, and in off- the-bench comments often inappropriate. Rude is rude, and he was often just that. Sure, the rude came wrapped in witty sometimes, and many recipients—other justices and active practitioners before the Court—may not have been bothered. So what! The Court is a public institution, and it’s the only branch of the federal government which is ought to be removed from the hurly-burly, back and forth which has become our means of dealing with our many problems. The rudeness diminished the institution and Justice Scalia, without regard for how its objects felt.
I left empathy for last. Justice Scalia said of himself:
I ought to be the darling of the criminal defense bar. I have defended criminal defendants’ rights—because they’re there in the original Constitution—to a greater degree than most judges have.
He was right, at least on issues of confronting witnesses and having a jury decide certain issues. But he was rigid and downright mean when issues involved pregnant women, struggling with unwanted pregnancies, gay people, poor people, etc. I’m not suggesting Justice Scalia should have sided with any of the afore-mentioned groups. On the other hand, other justices—Chief Justice John Roberts comes to mind—manage to reach outcomes without diminishing those people who are affected by his decisions. Maybe Justice Scalia’s more direct approach was better, but I like to think the Chief Justice struggles a bit with the fact that some of his decisions make life harder for regular people. Frankly, I’ve never had a sense that any of that mattered to Justice Scalia.
I don’t doubt for a moment that Justice Scalia was kind and decent in many instances. He was also not a shrinking violet, and I’m not suggesting our Court should be full of men and women lacking personalities. That said, I think the Court will be better off in the future than it has been during the most recent 29 years.
*As it happens, we do have some insights into what people in the day were thinking about living v. dead and enduring. John Marshall, the longest-serving Chief Justice of the United States, the man whose statue sits on the ground floor of the Supreme Court building, and the man credited with giving the Court its stature, wrote the opinion for a unanimous Court in McCulloch v. Maryland, 17 U.S. 316 (1819). There, the Chief Justice—a man who lived among the Founding Fathers—wrote: “This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” For sure, Justice Scalia co-opted enduring, but “adapted” seems to have gone missing.