Monday, February 15, 2016

RIP, Judge Scalia

I'm not going to write that much about Antonin Scalia; there are many, many other places you can go to get learned views of his life and legacy on the Court. I do want to commend this piece from Stephen Carter to your attention, however. Carter, who is a law professor at Yale and was a clerk for Thurgood Marshall, makes an important point about the politics of it all:
When the news broke Saturday that Justice Antonin Scalia had died at age 79, my Twitter feed began to fill with hate. Not disagreement or disrespect -- actual hate. He was an ignorant waste of flesh, wrote one young fool. His death was the best news in decades, cheered another. Then there was the woman who just had to tell the world that she felt safer now than she had at the death of Osama bin Laden. And several people expressed the hope -- the hope! -- that Clarence Thomas would die next.

Thus we see the discursive toll of our depressing Supreme Court deathwatch. We’re actually rooting for people to die.
I do understand why this happens. Scalia was the most powerful conservative thinker on the Court and he had a penchant for the bon mot in his writing, especially in his often withering dissents on decisions. In my experience, many on the Left don't particularly enjoy being on the business end of ridicule. Carter speaks to that, but also to the larger, more important point of Scalia's legacy:
The late Christopher Hitchens once wrote: “One test of un homme sérieux is that it is possible to learn from him even when one radically disagrees with him.” He was right. Those with whom we disagree will often have things to teach us, if we’ll let them.

Scalia was un homme sérieux in the classic sense -- a person of both seriousness and character, a man hard to bully. Did I disagree with his positions? Frequently, and often with passion. But he was a brilliant scholar and jurist, as well as a marvelous writer, and I never failed to learn from his wonderfully crafted opinions. The need to counter his arguments made mine better. And on some issues (the importance of robust protection of Sixth Amendment rights, for instance) Scalia’s opinions converted me to his cause.
If you think about what happened in Wisconsin with the John Doe abuse directed against Scott Walker and his supporters, you understand why Sixth Amendment protections are so crucial, especially the importance of knowing who your accusers are. The text seems straightforward enough:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The calling card of the totalitarian state is the secret policeman's knock on the door; sometimes, they don't knock. We have all manner of agencies with police powers, and crucially, with the means to enforce said powers. We also have a plethora of politicians who are just fine with the use of force to get their desired results. Antonin Scalia understood that. I worry that his replacement won't, or more importantly is indifferent to the concern.

11 comments:

Brian said...

Scalia was a tremendously talented jurist, a fine writer, and frequently funny. Had I the opportunity to know him personally I suspect I would have enjoyed his company. I take no pleasure in his death.

But I am exceedingly happy he is no longer on the Court.

While his devotion to slavishly narrow textual interpretation occasionally put him on the side of reigning in the excesses of the state (his defense of the 6th Amendment being a good example) it at least as often put him in the position of advocating for the monstrous simply because the text apparently provided no means to do otherwise. For example:

"The Court throws one last factor into its grab bag of reasons why execution of the retarded is 'excessive' in all cases: Mentally retarded offenders 'face a special risk of wrongful execution' because they are less able 'to make a persuasive showing of mitigation,' 'to give meaningful assistance to their counsel,' and to be effective witnesses. 'Special risk' is pretty flabby language (even flabbier than 'less likely')–and I suppose a similar 'special risk' could be said to exist for just plain stupid people, inarticulate people, even ugly people."
(Dissent in Atkins v. Virginia, 2002)

(Lower case) republicanism no more requires originalism than Christianity requires biblical literalism (though perhaps it isn't an accident how often the points of view overlap.) If applying the Constitution is a straightforward matter of reading the text, surely an algorithm could do it.

I hope Scalia's successor is more interested in justice and good governance than in divining the intentions of the centuries-dead.

Mr. D said...

If applying the Constitution is a straightforward matter of reading the text, surely an algorithm could do it.

I would trust an algorithm more than I would trust the Ninth Circuit. But that's just me.

I hope Scalia's successor is more interested in justice and good governance than in divining the intentions of the centuries-dead.

If the intentions of the centuries-dead had no bearing on either topic, I'd be with you. But they do, of course. And that's why we argue about such things.

W.B. Picklesworth said...

Brian,

You rightly point out that there are uncomfortable positions which his originalism forced him to take. But I think it's important to note that this is hardly uncommon. ALL jurists, even middle-of-the-road ones, take positions that have unfortunate results. I think this is a simple law of applying the abstract to the concrete. The upside of a thinker like Scalia is that the law will be more predictable, understandable, and consistent. Right now, our laws resemble the NFL rule on what makes a completed pass. People, even announcers and players, literally don't know. Not until the referee says, "This was a catch." The fuzziness of the law right now is a detriment to society and whatever gains there might be in overt compassion, we will likely lose much more in clarity.

Brian said...

I will never accept clarity as a sufficient justification for killing the mentally disabled in cold blood. Call me rigid.

Mr. D said...

I will never accept clarity as a sufficient justification for killing the mentally disabled in cold blood. Call me rigid.

I hear you. I am on the record as opposing capital punishment for everyone. I feel the same way about the unborn.

Also, I'd be willing to wager that Scalia's successor won't have any compunctions about the particular issue you hold dear, especially given the financial incentives that are now part of our federal laws that, to his credit, Scalia opposed.

Gino said...

Scalia did say that if you dont like what the law says, you can change it democratically.

Mr. D said...

Scalia did say that if you dont like what the law says, you can change it democratically.

Well, there is that.

W.B. Picklesworth said...
This comment has been removed by the author.
W.B. Picklesworth said...

How very noble of you. And well-done avoiding an idea to deliver a one-liner. I think it really moved the ball.

Bike Bubba said...

It's worth noting that the court's opinion in Atkins v. Virginia was no great shakes, either, saying that you couldn't assume the mentally disabled were capable of knowing what they did was wrong, but the states were capable of determining what that level of intelligence was through the political process. So in effect, they came to the same conclusion as did Scalia.

Don't know exactly what to think of Mr. Atkins--if the wiki article is representative, the case was a mess on many levels--but I do confess to skepticism that those who are mildly mentally retarded are incapable of understanding the consequences of actions. I went to school with a Down's kid who understood right and wrong, and have interacted with others in church and elsewhere who also understood the same.

But more to Brian's point that the court decision needs to be about "justice and good governance", it strikes me that it is precisely when the courts do this that they most pervert the law and....ironically....the principles of justice and good governance. Scalia's great achievement is to remind us of what I'd loosely call the principle of the "perspicuity" of law, where a man of modest intelligence can understand the basic principles involved. The crime (and I say this pointedly) of the left faction of the court is to obscure this.

Gino said...

yet, NOTHING in scalia's ruling prevents the democratic process from taking place and ending this form of punishment...
i disagree with the result, but i still have the ability to work toward the better one. this is important.