Monday, February 15, 2016

A complicated man

I have resisted the urge, strongly felt since Saturday afternoon when I learned of Antonin Scalia's death, to put any thoughts at all on the screen (I almost said "on paper") about the man and his legacy.  I am at best a casual student of the Supreme Court; its work rarely touches on my legal practice, and I have no particular claim to being a scholar of the Constitution and of the court whose work consists primarily in interpreting it.

But Nino Scalia has always been a fascinating and complicated person to me.  He was, by all accounts across the spectrum, a brilliant legal scholar.  His opinions were enjoyable to read, at least in the sense that they were often funny and ascerbic, with beautifully incisive and insightful commentary.  We disagreed about many things, maybe even most things, but I can recognize even in my intellectual opposite that he had a great love for this country and for the Constitution that created and governs it.

I met him once.  He was a guest speaker in my Constitutional Law I class at Georgetown in 1998.  His commentary came at a time when I was not mature enough to listen to what he had to say, or at least to record it for what it was.  He did not call on me for a question, and that's probably a good thing, as I doubt I would have had anything meaningful to ask him, and probably would have used the opportunity to pick a fight with someone who was far better equipped than I was to carry the day.  But I remember him being funny, offering jokes and the same wryly-smiling, sarcastic and sardonic demeanor that shines in many of his court opinions.  I shook his hand after class and said, "It's an honor to meet you."

He was friendly with Ruth Bader Ginsburg--the best of friends, in fact; they played tennis together, and they both passionately enjoyed the opera--and that, to me, is as good a character reference as one could possibly have.  I don't know RBG and although I might have met her once or twice at Georgetown events, I'm sure I've never spoken to her, but her late husband, Martin, taught me nearly everything I know about tax law and policy.  He was an amazing teacher who frequently displayed the same sort of wit that Scalia was known for.  (This ends the name-dropping portion of the blog post.)

I have no need to write a hagiography of Justice Scalia.  In fact, despite everything I've said up to this point, I find it hard to hold him in professional regard at all.  He had a carefully cultivated reputation for being what he referred to as a "textualist" when it came to the Constitution--and, for that matter, to all statutory interpretation.  By that he meant that the text governs; that the words mean what the words mean, and there is no need of a searching inquiry as to what anyone who wrote them might have meant.  (Some confused commentators regard him as an "originalist," a term he flatly rejected for its connotation that what the Framers of the Constitution meant governs; rather, what the text says, governs, in his jurisprudence.)

The problem with that approach is the great divide among Constitutional scholars (and the less scholarly of us):  Does the Constitution mean only what it says, in the most restrictive sense, or does it provide a framework of principles that are applied through a process of interpretation?  There are merits and demerits on both sides of that divide.  I don't fault Scalia for standing on the other side of it.  What I fault him for is the quiet abandonment of those principles when they become inconvenient.

That is, Nino wasn't really a textualist at all, except when it conveniently aligned with his sense of where cases should be decided and principles should be applied.  He proved as much in his concurring opinion in Bush v. Gore; he wanted Bush to win, so he cobbled together a theory that made that outcome possible.

Likewise, Scalia could be at his most vitriolic when it came to the rights of sexual minorities. His dissent in Lawrence v. Texas, a 2003 that overturned state criminal laws against sodomy, complains loudly about the "homosexual agenda," the focus of which is "eliminating the moral opprobrium that has traditionally attached to homosexual conduct," as though that's something bad.  As fine a legal mind as Scalia had, his position on homosexuality illustrates why he was not the kind of Supreme Court justice we need.  Above all, the Court must stand ready to protect our hard-won rights as the last bastion of the Constitution against an aggressive government.  It is no business of the government what consenting adults do with each other in the privacy of their bedroom.  It is simply not something that the government should have any interest in.

Whether he was motivated by a personal dislike for homosexual conduct, or by religious conviction, or by the need to repress personal desires, Scalia's positions that became law worked to oppress millions of Americans and to deprive them of their basic rights and dignities, and those that didn't become law, would have done the same if only more justices had agreed.  This illustrates why we must be careful not to follow people just because they are learned, or intelligent, or powerful; their opinions can be wrongheaded despite all of these things; they are subject just as we all are to petty prejudices and lack of foresight.  It's important to remember that they are human.

This point is best contained in an aphorism ascribed to Robert H. Jackson, who was the Attorney General under FDR, who was the chief prosecutor for the war crimes trials at Nuremburg, and who held the same seat on the Supreme Court that Scalia held:

We are not final because we are infallible, but we are infallible only because we are final.

I feel sorry for his family, who lost their patriarch this weekend.  To them, he wasn't a powerful public figure; he was a husband, a father, a grandfather.  They feel his loss deeply, I'm sure.  As above, it's important to remember that important, famous, powerful people are human.

But I do not feel sorry for the country, which will be much better off for his absence from the Court.

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