>> Tuesday, February 16, 2016
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.... The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.- Obergefell v. Hodges, 576 U.S. ___ (2015), Justice Scalia, dissenting.
I worry that I'm not a kind person. I would like to be kind. I am afraid that when I die--this is one of the few things about death I'm really afraid of--there will be a lot of people who will remember that I was cruel, and impatient, and intolerant. Because I am all of those things so often, even though I would rather not be.
It is one of the things I hate about my job, to be honest with you. It's a job that demands a certain amount of inconsiderate treatment of others, demands a certain level of confrontation, a certain level of impatience. We don't like it, as a rule; if you are a lawyer, you will take hours of ethics courses that are essentially about not being an asshole, read state Bar opinions and journal articles about how "professionalism" demands that you be considerate and tolerant and polite. And then you'll walk into a meeting with opposing counsel who is being obstinately unfair on some point, or deal with a witness who is obviously lying, and what are you going to do? How are you going to politely tell someone they're being an ass, how do you nicely call someone a liar?
I feel certain that some people will remember me as kind and empathetic. Well, I have a hope of certainty; I'm optimistic, I guess you'd say. But I know there are people who will remember I was a jackass, and probably rightly, because I probably was where they were concerned. And the worst part is straining your mind and memory to think of ways you could have approached matters in a non-jackass way and failing to do so; not because of some childish sense of self-entitlement, some childish rationalization or justification (probably starting with, "But he...!"), but because there was no light on the path except your burning anger.
I don't think Antonin Scalia cared all that much whether people thought he was nice. Maybe he did. I didn't know him. But he never acted like somebody who cared what was said about him when he was alive.
I guess we should honor that in death.
"A problem that undermines their entire approach is the authors' lack of a consistent commitment to textual originalism. They endorse fifty-seven 'canons of construction,' or interpretive principles, and in their variety and frequent ambiguity these 'canons' provide them with all the room needed to generate the outcome that favors Justice Scalia's strongly felt views on such matters as abortion, homosexuality, illegal immigration, states' rights, the death penalty, and guns."- Richard A. Posner, "The Incoherence of Antonin Scalia"
New Republic, August 24th, 2012.
The complicated thing here is that you'll read a lot--have already read a lot, I imagine--about how Scalia was the greatest Justice or the worst Justice, how he was a defender of the Constitution or a threat to liberty, how he was a great protector of the capital-L Law or how he left a great wake of individual suffering behind him, and all of these things are true. What you should probably reconsider about Justice Scalia is that how one feels about him probably comes down to how you feel about particular parts of the Constitution, whether you're big on the Fourth and Sixth Amendments or where you are on the Eighth and Fourteenth, for instances. A pro-drugs libertarian might well adore Scalia on police searches and tear his hair out over Scalia on the use of drugs in religious ceremonies. If you're a criminal defense attorney, you probably love the havoc he unleashed upon the rules of hearsay when he invoked a strong Confrontation Clause, and have spat on the ground and cursed his name over the things Scalia said and wrote about post-conviction relief for prisoners.
A charitable person might say that was a consequence of Scalia being true to his ideological roots as a strict originalist, and that's probably the thing a lot of the people writing nice things and harsh things about Scalia will get wrong over the next few weeks. Oh, I mean, sure, Justice Scalia articulated this strict originalist position and went on a bit about how he believed in a "dead" Constitution; but the curious thing about Antonin Scalia's Founding Fathers is that they just happened to somehow believe a lot of things a conservative Catholic Italian-American born in Trenton and raised in Queens in the mid-20th Century might believe, which makes the Founders somehow both more and less progressive than you might expect from a lot of wealthy Anglo-Saxon farmers living on the frontier of the British Empire in the 1700s. Scalia wasn't true to the Constitution and first principles so much as he was true to his prejudices, and I don't intend for that to be construed in a wholly pejorative way; he was prejudiced against certain prior restraints of free speech and against expansive police state powers, for instance, just as much as he was prejudiced against gays and minority ethnic groups.
I guess the point here is that while it was darkly amusing, as the kind of bloody-hearted socialist Scalia liked to mock, to make grim jokes about Scalia's death at a Chinese New Year's lunch this past Sunday at a table of liberal fellow-travelers, it's not really that simple. It shouldn't be that simple for people who spent Sunday touting Scalia as a conservative icon and perhaps mourning his passing, either. While Scalia undoubtedly took sides, the more complicated truth is that he was on his own side, and was never wholly for or against any of us--believe me, there are law-and-order Conservatives toasting the man right now who would have hated a lot of jurisprudence, as much as there are liberals who would be stunned to learn he'd upheld one of their articles of faith, albeit for some stupid reason involving a personal understanding of what James Madison thought about thermal imaging cameras.
Scalia is most famous for championing the judicial philosophy of originalism, which says that the Supreme Court should interpret the Constitution as it was understood at the time of its ratification (or at the ratification of individual amendments). He worked tirelessly to persuade his colleagues and the legal community that originalism was the only proper mode of constitutional decision-making. In Heller, he achieved a victory of sorts: Both he and Justice John Paul Stevens, who wrote the dissent, relied heavily on sources from the founding era. But even here, there is less than meets the eye. Heller notwithstanding, Scalia failed to convert his colleagues.- Eric Posner, "The Tragedy of Antonin Scalia"
Slate, February 15th, 2016.
I don't come to praise Scalia; I come, indeed, to bury him. But it's possible he buried himself.
There's a lot of hot air blowing around over Scalia's dissents, which were cutting and occasionally funny, but were never the law of the land. Lots of people talking about how Scalia will be remembered for those dissents, and that could be true, I guess, though it seems hard to imagine. It's not that there aren't quotable dissents going back to the birth of the Republic, it's just that those quotes are mostly old zingers that get trotted out by lawyers and judges for their impact and pithiness, and not because they mean very much. By their nature, dissents are the grumblings of the side that lost.
This is the thing about Scalia's influence: he lost. A lot. Sometimes, even when he won, in cases where he wrote a concurrence with the majority result that really only reflected his own opinion and maybe Justice Clarence Thomas', he lost. Being a pithy, quotable, cranky, cantankerous judge whose dark mutterings make readable newspaper articles and editorials (and, these days, tweets) is great if you want to see your name in print, but less-great if you're looking for the four-plus other votes necessary to make your views the law of the land for the foreseeable future.
I am writing this prematurely, of course: the man's been dead for two whole days and History will be the Court of Last Resort that determines whether Antonin Scalia was a great legal mind who will be as quotable as Oliver Wendell Holmes, or... well, I have no idea who the least-influential Supreme Court Justice of all time was, and Google hasn't been much help (perhaps because searching for nothing is inherently problematic, eh?). It may well be that fifty years after I'm dead, Scalia will be worshiped by admiring 1Ls and Scalian bon mots will open and close thousands of essays and articles about the law, and rights, and life and how to live it.
It's just hard for me to imagine it, is all, when the man made such an art of being disagreeable in so many literal and figurative senses of that word. Up to the day he died, there was a widespread conventional wisdom that many of Scalia's dissents and concurrences could have been majority opinions if he'd dialed the Scalianess of his words and thoughts down (from 11, natch) to 6 or 7; that he'd antagonized plausible allies on the bench until they wouldn't join an opinion of his if they needed the paper for kindling so as to not freeze to death in a blizzard; that he had marginalized himself so effectively after decades of snark, sarcasm, and, sometimes, hammer-heavy brutality, as to make himself almost irrelevant except for the entertainment value his latest rant would be guaranteed to have. That a career of trolling left him where trolls traditionally end, alone (mostly, but for the companionship of the ever-stalwart Justice Thomas) under a bridge.
I have a suspicion that this is going to be his legacy. I would guess. I could be wrong. I'm wrong, a lot. But if you asked me to invest in some kind of speculative fund based on Supreme Court Justices' legacies, I don't see Antonin Scalia being the kind of growth venture that John Roberts will probably be; Roberts picked not because he's a conservative like Scalia (I'm not sure there are conservatives like Scalia, even among the conservatives who think they're like Scalia), not because Roberts is especially admirable, nor, not even, because Roberts is a Chief Justice; but because Roberts seems to understand that he's supposed to be interpreting cases and issuing binding opinions about the law and Constitution, and not just shouting thoughts he has from the bench. Roberts, that is, seems to grok that he is supposed to be negotiating agreements and forming coalitions and sometimes making compromises in order to produce lasting clarity and understanding. That a Supreme Court opinion isn't merely an editorial or disquisition on some political theory of the law, or (worse) a scathing critique of the Court's institutional or (worst) personal defects.
Today, Scalia’s words are only that, his rhetoric inversely proportionate to its influence. He has lost the culture wars, and he knows as much. The most he can do is concoct vinegar-infused dissents, hoping the next generation of law students, whom he feels is his true audience anyway, will eagerly ingest them.- Jennifer Senior, "Antonin Scalia May Be Losing the Culture Wars,
But He’s Winning the Zinger Wars",
New York Magazine, June 26th, 2015.
Which, you know... oh, I've failed to keep these sections wholly separate, like I intended. Well, do forgive me for failing a structural agenda you probably didn't even notice until I called it out.
Anyway--which, you know, that previous section is perhaps a warning and benediction for those celebrating Scalia's death. "Warning" is probably the wrong word, but I haven't a better; "caution," maybe? Anyhow, just as Antonin Scalia failed at influencing and persuading his colleagues, it seems like he fared hardly better with his nation, which is understandable since the rest of us are a larger undertaking than eight other Ivy League law school grads.
I haven't gone through Scalia's last decade of dissents, but one can just look at his dissent in Obergefell v. Hodges and see in it the ravings of a man who knows he's lost the culture war and can't surrender gracefully. You could almost feel sorry for him, if he was the kind of man you could feel sorry for.
I've seen a lot of very, very true comments hither and yon about how cruel Scalia was to various minority groups in this country. And, not that the commenters asked for or need my endorsement, but they certainly have it, and I think the reminders that Scalia was in a position where his views could have an effect on real live human beings, and weren't just theoretical musings, are appropriate.
I'd just also like to observe, though, that those effects were diminishing over time, and that Scalia's statements in public and from the bench became harsher the more diminished he became, as if Scalia was aware (and surely he was aware) of how far out into the periphery of public discourse he was being swept and was becoming increasingly frantic for someone, anyone to pay attention to views on race and class and sexuality and culture that were no longer contemporary, modern, or even particularly relevant. He was already drowning in his own obsolescence, don't you know?
If he hadn't been a Supreme Court Justice, he'd have been your crazy uncle you only see at Thanksgiving. The one you'd like to argue with, except your mom will be mad at you, so you just roll your eyes when his head is turned, and on the drive home you and your significant other try to out-do one another in disbelief that an example of such a nearly-extinct species still roams the Earth, refusing to pass the sweet potatoes while yammering on about how the Negroes were happier when they stuck to their own colleges and he wouldn't have as much of a problem with faggots if they'd stop trying to force butt-sex on everybody.
He was already dying, before he even died.
If he wanted respect in death, the man should’ve shown it to more people in life.- Sara Benincasa, "On The Death Of A Brilliant Public Servant",
Medium, February 13th, 2016.
I don't much feel like dancing on a grave. Not that I begrudge anybody wanting to bust a move beside his tombstone. I definitely don't want to get into a litany of all the people who loved or liked him, from his grandkids to the Notorious RBG. Maybe he should have thought about how nasty people would be about his demise when he was editing invective (just because you write something, doesn't mean you need to publish it). My own worry that people will say mean things when I die is that I will deserve it, and Scalia doesn't seem to have ever let that thought worry his head any.
My lack of happy feet is more a testament of spiritual fatigue than it is a matter of whether he deserves it. He very probably deserves it; and good riddance, though, honestly, I'm kind of thinking his absence will be more keenly felt in the conspicuous relative silence and slight rise in the level of discourse at the Supreme Court level than in his actually being, you know, missed. (Someone in the halls of the Supreme Court, one of the clerks, probably, will say something like, "Boy, can you imagine Scalia's response to this?" And they will laugh. Not for long. A laugh, the kind of laugh that could accurately be rendered: "Ha-ha." And then someone, possibly the very same clerk, will ask if anybody wants to have a drink after work.)
"I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so, and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. These are responsibilities that I take seriously, as should everyone."- President Barack Obama, February 13th, 2016.
I'm ready, then, for the President to appoint someone to replace him, because that's what Presidents do, is appoint people to fill vacancies. And then the Senate, which has a Constitutionally-designated job to "advise and consent," can do whatever it is they collectively feel constitutes advising and consenting. Or not-consenting, which I think is implicitly a part of consenting. The Senate can sit on the nomination for 340-something days if that's what they feel their job is, I don't see them being under any obligation to approve a nomination any more than I see an obligation on the President's part to not-make a nomination.
There's a lot of stupid going around, and I get to be non-partisan and say that the stupidity seems to be a bit on both sides. I'm not aware of anything that forces a President in the final year of his lame-duck presidency to withhold a nominee for a Supreme Court vacancy; the idea that there's a "tradition" arising out of an absence of an event ever having happened very recently is pretty fatuous. On the other side, I'm not aware of anything that particularly obligates the Senate to do things in a particular way; if the Senate wants to explicitly withhold consent by rejecting nominees for eleven months, or implicitly withhold consent by sitting on the process for the same time, I don't see that as being constitutionally prohibited, or as being much of anything. Actually, it's a fairly conventional separation-of-powers thing, probably the kind of thing the Founders actually contemplated when they were assembling our Constitution with all of its inefficiency and intentional road-blocking, as opposed to the kinds of things that didn't occur to them, like the effect states west of the Mississippi would have on the balance of power between agrarian and financial interests, whether or not a legal entity created for the purposes of severing individual liability should be able to buy TV ads during the Super Bowl, and nuclear missiles. Posed with the "problem" of a sitting President submitting a Supreme Court nominee that the Senate promised not to confirm, I imagine the Founders would have collectively said, "Enh," or whatever they said in the 1780s that meant the same thing as "Enh." ("Feh"? "Tch"? "Feezcock"? I have no clue.)
In a related bit of stupidity, I see people accusing other people of politicizing a tragedy, or defending themselves from this accusation by counter-accusing others of politicizing the tragedy first, or similar inanities, and I would just like to set the record straight by pointing out what ought to be pretty damn obvious: the death of an extremely ideological Supreme Court Justice (perhaps the most ideological Justice in the Court's history), on a deeply divided Court, creating a vacancy that is pretty much guaranteed to shift the balance of power on the court regardless of who is nominated to replace him, would be inherently political under any circumstances, even if it weren't an election year.
On top of which, by the way, it's an election year.
Scalia's death is a political event. It doesn't need one side or the other or any side at all to "politicize" it (which, also by the way, "politicize" is contemporary jargon for, "Shut up, I'm trying to dominate a public discourse, here!"). The death of a sitting Supreme Court Justice has, you know, political consequences, because, hey, look, a President has to appoint somebody to replace him and the Senate has to vote on the nominee. Last time I looked it up, though I confess it's been awhile, that was all political and stuff. And Scalia, being the fifth vote of a court that regularly goes 5-4 on things, was a politically significant Justice even if his actual opinions end up not meaning very much as time rolls on.
And because Scalia represented this deep ideological position (even if he was hypocritical and inconsistent about it and in practice it really came down to his own prejudices about everything), just about any appointee from any President is going to have some shifting effect on the Court. Put it this way: supposing the President does do exactly what he shouldn't do and isn't obligated to do, and waits to let his successor appoint a replacement; and suppose Marco Rubio or Jeb Bush somehow pull their numbers out of the single digits and then somehow somehow pull an actual election victory out of it: do you think they're going to find, much less appoint Scalia 2.0, or do you think they're going to look for another Roberts-ish nominee, which would sort of shift the Court center-right? Or let's say Trump does what it's looking like he might, and wins the nomination, and somehow (somehow somehow) becomes the next President: is he going to appoint Antonin Scalia, Jr., or is he going to nominate some golfing buddy or something? And these are the Republicans; needless to say, President Sanders or President Clinton would nominate someone unlikely to be on the fringes-of-the-conservative-fringe as Scalia was.
Basically, it's only a President Cruz or President Carson who would look for Scalia II (Electric Boogaloo), and good luck finding him, right?
There was also this really dumb thing some people were saying about, "Let the American people have a voice in picking the next Justice," meaning, "Obama should let his successor make the appointment" (and, since these folks seem to be Republicans saying this, implicitly meaning, "...because I'm hoping a Republican will get to make the appointment"). Funny thing about that: the American people have spoken, twice now, as a matter of fact. Just because some people maybe don't like what a majority of Americans said....
And a funny thing about the funny thing: while I support Sanders, and while I will vote for Clinton if she's the Democratic nominee, I actually feel more comfortable letting Obama make the appointment. I mean, I'm sure I'd like a Sanders pick or a Clinton pick (and that I wouldn't much care for a Republican President's likely pick, although you have to flag that). But I feel like I have a vibe for the kind of nomination Obama would make, and in fact the list of likely candidates that's circulating appears to be a pretty good list. It's not that I don't trust Sanders or Clinton if they're elected; but I actually do trust the current President on this one. It's not just fear a Republican gets elected that's influencing my thoughts on this, in other words; I still think the guy who I voted for twice to make decisions like this one is a good pick for guy to make decisions like this one.
(Oh yeah, the flag: it's probably worth mentioning that Republican SCOTUS appointments tend to move to the middle or left--or, possibly, were stealthily on the left all along (looking at you, Souter)--far more often than Democratic appointees tack right (though it's been known to happen a very few times). Which brings up the thought that I'm not really convinced that a Bush or Rubio appointee would be the Death Blow to Liberalism!TM that the liberal blogosphere would undoubtedly advertise it as. I mean, it could be, sure, not trying to be blasé or anything. But there's less reason to panic than some might think.)
"All the pilgrims rushed out to see. I remained, and went on with my dinner. I believe I was considered brutally callous. However, I did not eat much. There was a lamp in there—light, don't you know—and outside it was so beastly, beastly dark. I went no more near the remarkable man who had pronounced a judgment upon the adventures of his soul on this earth. The voice was gone. What else had been there? But I am of course aware that next day the pilgrims buried something in a muddy hole."- Joseph Conrad, Heart of Darkness
Justice Scalia--he dead.