On Scalia’s Passing
Most Liberals are not publicly admitting relief at Anton Scalia’s death because they don’t want to appear unseemly. The Conservatives who are happy about his passing, and there are more than the popular narrative will admit, won’t fess up either for fear of being labeled a RHINO. Since I don’t care about labels, I’ll come right out and say it. I’m glad Scalia is no longer a SCOTUS justice.
Don’t misunderstand, I’m not happy about his death. From all accounts, he was a jovial acquaintance, a good family man, and a faithful friend. But he did terrible things to our country. He represented, to me, everything that is wrong with the legal profession and our current political situation.
I don’t hate lawyers in general. In fact, I owe a debt of gratitude to some of them. But I do hate lawyers who use their intellect and knowledge to justify absurd conclusions. The “affluenza” defense and Bill Clinton’s “Define is” are examples of what I’m talking about. Obviously, I am not a lawyer, but there are plenty of legal scholars who have criticized Scalia for his oft-tortured legal decisions. See this article as an example. But applying William James’s idea of pragmatism allows me to make informed opinions about Scalia’s success in defending the Constitution. Simply put, James argued that we can judge the value of an idea by the results of its implementation. Applying this principle to Scalia’s body of work paints a very different picture than the narrative that has accompanied him for so long.
The narrative says he had a very high IQ. And he had a profound effect on our legal and political system through his ideas of textualism and originalism. But while many Conservatives assert that Scalia worked to protect the Constitution, I think he actually undermined it. He accomplished this by letting his deeply held religious beliefs and sense of morality dictate his votes on constitutional issues. He then used his tremendous intellect to create legal justifications. Instead of using his intelligence to further understand the human condition, he used it to bully his opponents and burnish his own reputation.
Justice Scalia reveled in being the smartest man in the room even when he wasn’t. His judicial opinions often drip with contempt for what he considered the lesser minds that had the temerity to disagree with him. I have spent my life seeking out people smarter than me so I can learn from them. And one thing I’ve learned is that truly intelligent people have a high tolerance for uncertainty and alternative viewpoints. Scalia, being a member of the ISIS branch of the Catholic Church, refused all uncertainty. His speeches and writings are filled with the attitudes of infallibility and self-righteousness. He seemed to equate the Constitution with biblical writings except they were handed down from Mt. Rushmore instead of Mt. Sinai.
Even on the surface, his ideas of textualism and originalism come across legal argle bargle. The Second Amendment was written for a time when rates of fire were a couple of rounds a minute. Now we have exploding munitions and fire rates of thousands of rounds per minute. Laws and interpretations of those laws must adapt to modern realities. But Scalia rejected this idea and famously argued that it was up to the legislature to modernize laws. But when they did, as with campaign finance, abortion, guns, and racial discrimination laws, Scalia ignored the new laws and upheld the founders’ original intent. When confronted with the founders’ intent in cases like Connecticut’s eminent domain and Citizen’s United, Scalia suddenly found the ability to apply modern interpretations. To argue that the founders would have agreed that corporations are people is to find something that is not expressly in the Constitution. And since corporate entities were familiar to Madison, et al., one cannot then claim that their exclusion in the Bill of Rights was not purposeful.
Scalia and his defenders claim that money is free speech and therefore unlimited. This is a ridiculous argument. If money is the standard for free speech, then the Koch brothers and all of the other oligarchs get more free speech than those who fought and suffered to defend the Constitution. This is not only legally and morally wrong, it’s an obscene misuse of power. The very first important SCOTUS case, Marbury vs. Madison, established the principle that everyone has equal access to free speech, not just the rich and powerful. The FCC was established to ensure that the public airwaves gave equal access to all citizens. And the current fight over Net Neutrality is a continuation of that First Amendment right.
But nothing Scalia said or did is more repugnant than his statement that:
“There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
I understand that the quote is often taken out of context. I even understand that technically and legally, Scalia is probably right. But if someone has evidence to show their innocence and they have exhausted all other judicial options, then the Supreme Court can and should intervene. To not do so in a death penalty case is a violation of the sanctity of life that Scalia held so dear in abortion cases. The fact that Scalia argued some innocent people might suffer in order to protect society from the guilty is the exact opposite of our founding principles, what we are taught in school, and what most citizens in our democracy demand from the criminal justice system.
Scalia was the Exhibit A for the failure of so many smart people. They think they know better than everyone else, especially the common man. They cannot imagine being wrong. They cannot imagine that someone of lesser intellectual power can be right. Scalia reminds me of a general we had in Vietnam. The U.S. Army spent an enormous amount of money researching, developing, buying, and issuing special jungle uniforms. Hundreds of experts were involved. Included in the uniform was what we referred to as a “boonie hat.” It rolled up to fit easily in our pockets and had a 360° brim to protect us from the equatorial sun. But the general didn’t like the look of the hat. It wasn’t professional, he thought. So he mandated that we wear baseball caps. Now, decades later, Vietnam vets struggle with skin cancer as a result.
Vietnam, Enron, and the financial collapse of 2007 were all engineered by “the smartest people in the room.” But Antonin Scalia never learned the lessons that intelligence doesn’t automatically equate to being right, that humanity is more important than the letter of the law. I won’t dance on his grave. Or spit on it. But I sure as hell won’t hide my happiness that he can’t trample on the Constitution anymore.