Sunday, February 14, 2016

Requiescat in pacem, Antonin Scalia

Oddly enough, according to a couple of sources, Associate Justice Antonin G. Scalia’s best friend was AJ Ruth Bader Ginsburg. Said Marcia Coyle on PBS NewsHour Weekend, Scalia, who passed away Saturday at the age of 79, “was widely liked ... a very colorful writer, and in person ... a consummate gentleman, ... could be very funny. He is going to be missed ... especially by Justice Ginsburg, with whom he had a special friendship — they called each other best friends — and with whom he went to opera and ... to India.

“He does not write like a happy man”

To hear Scalia described as “widely liked” and a “consummate gentleman” may sound improbable to people who only knew of him through his strident, hectoring argumentation on the bench, especially to liberals and progressives who came to hate him as a conservative obstructionist. (One gay man of my acquaintance sneered, “My condolences to the Koch brothers for their loss.”)

Because Scalia’s opinions coincided often with conservative interests, it was all too easy to claim his originalism was merely intellectual cover for his political views — in fact, so easy that more substantive legal criticism often went lacking. His dissents — and he wrote plenty of dissents in his nearly thirty years’ tenure on the SCOTUS bench — often sacrificed detailed analysis of the legal principles involved in favor of sarcastic fiskings of the majority opinion and fervent homilies on the wider implications of the decision; e.g., his dissent in Obergefell v. Hodges (513 U.S. ___ [2015]; pp. 69 ff.). So acidic were his opinions that, as Conor Clarke observed in Slate, “Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.”

“How our system of government is supposed to work”

Of course not. Usually absent from the criticism was any note of Scalia’s concern for American democracy. Consider this extract from his dissent in Obergefell:

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. ... Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work. …
 But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions ... . ” ... What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty” — at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. (Obergefell [2015], pp. 69-72)

Perhaps unsurprisingly, Scalia was a traditionalist Catholic who drove long distances to attend Latin Masses, and whose son Paul is a priest. When asked if it had caused problems for him, Scalia, an Italian-American, replied, “You know what I say to those people?”, then flicked his fingertips under his chin in a traditional Italian gesture of contempt.

However, it’s a mistake if not an anti-Catholic stereotype to say Scalia’s religiosity dictated his legal opinions. (I find it odd that Catholicism dictated the opinions of the minority in Obergefell and United States v. Windsor [570 US ___ {2013}], but didn’t do so for the two Catholics in the majority. The Church’s brainwashing is apparently not all it’s cracked up to be.) “[I]t is not of special importance to me what the law says about marriage,” he wrote in his Obergefell dissent. “It is of overwhelming importance, however, who it is that rules me.”

Throughout his career, Scalia’s major concern was the corruption of the Supreme Court into a super-legislature or Central Committee dedicated to imposing the values of the social élite through the ukase of judicial review. No one was more aware than he how little the Court actually reflected the demographics or the values of the rest of the country: six men and three women, six Catholics and three Jews, all from either Harvard or Yale, and none from the Midwest.

If it’s fair to say that Scalia’s originalist philosophy often coincided with his conservative personal views, it’s also fair to say that most — not all, but most — opponents of originalism are also unabashedly progressive. Sauce for the goose: it can’t be wrong for one justice to write his politics into the Constitution without it being wrong for all jurists, whether they’re left- or right-wing.

“Apologize to him

Scalia didn’t bargain for votes, or settle for partial victories; even when joining a majority opinion, he would contradict the author’s argument if it didn’t meet his standards (he wrote more concurring opinions than any justice in the Court’s history). When one government lawyer apologized to AJ David H. Souter for referring to him as “Justice Scalia”, Souter replied, “Thank you, but apologize to him.”

Yet he could be very jocular; a 2005 study claimed that Scalia had gotten the most laughs in the October 2004 term, although “Justice Scalia’s numbers may … overstate his wit, if only because the courtroom expects quips from him and may laugh at the least provocation.” He was also a very popular guest speaker at law schools and colleges, often drawing SRO crowds, and once appeared at a Knights of Columbus council centennial without charging a fee.

“God assumed from the beginning that the wise of the world would view Christians as fools,” Scalia told the crowd, “... and he has not been disappointed. … If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.”

The Triumph of the Élite

If I’ve dwelled on Obergefell, it’s because, as I argued last summer, that disastrous ruling “signals the triumph of the élite and the functional advent of limited self-government.”

In other words, we now live under an aristocracy willing to allow us to go through the motions of representative government, so long as it’s their morality we encode in law. For all practical purposes, the Constitution is a dead letter, our institutions merely a legacy from when it still had some relevance, permitted us so long as we conform. Causa finita est: the American experiment has failed.

Indeed, Mario Loyola recently argued in National Review that an American dictatorship “is now a realistic possibility,” at least in part because “the Supreme Court decided that it didn’t need to worry about Congress’s delegation of legislative authority to the executive branch, because both Congress and the federal courts were in a position to police what the executive does with those delegations.”

This rationale has been abundantly refuted in the decades since [Yakus v. United States (321 US 414 {1944})]. Congress is never in a position to block an agency rule, except in the rare circumstance that the president’s own party rebels against him. And the Court uses the pose of “deference” to justify letting the political branches do exactly as they please, concerned most of all with preserving the Court’s own popular legitimacy.

Meanwhile, with Scalia’s death there’s one less defender of religious liberty on the bench. As a tied decision upholds lower-court rulings, this could spell doom for the collection of cases challenging Obamacare’s birth-control mandate. Republicans are already looking to block any Obama appointment, in the hopes that a Republican will be sitting in the Oval Office come next January 21; Democrats, on the other hand, are gleefully bruiting about the possibility of elevating Obama to Scalia’s empty chair.

Antonin Scalia wasn’t perfect. He wasn’t always likeable. His reasoning wasn’t always impeccable. However, he did what he could to stop the erosion of Constitutional government and maintain the rule of the people. It just wasn’t enough.

… [W]hen one considers the degree to which public analysis of SCOTUS rulings ignores the actual verbiage of the opinions, both majority and dissenting, in favor of either indiscriminate praise of the majority’s enlightened sensibilities or vicious attacks on their political, racial, sexual, economic, and religious biases, it’s not hard to conclude that the American people no longer particularly care “what the Constitution really says”, or whether any such exercise truly respects the democratic process. The people are, in the main, quite satisfied for an unelected and unrepresentative élite to tell them what justice is and what rights they ought to have. (Anthony S. Layne, “The end of the American experiment”)

If there is one fact we really can prove, from the history that we really do know, it is that despotism can be a development, often a late development and very often indeed the end of societies that have been highly democratic. A despotism may almost be defined as a tired democracy. As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep. (G. K. Chesterton, The Everlasting Man)

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