As someone who has been so close to dying myself, I have a distaste for wishing anyone’s death. As I tuned into MSNBC upon hearing of Antonin Scalia’s death, I honestly can’t say that I felt bad in any way. As I listened to Alan Dershowitz finding nice things to say about Justice Scalia, it seemed to me that Mr. Dershowitz was sincere, even if he disagreed with Scalia on most legal positions. I heard someone from Scotusblog talking about how beloved Scalia was to other members of the Court and their feelings about how nice a human being he was. I think that too was probably close to reality and we will soon see many sincere statements about how much Antonin Scalia will be missed and what a loss it is for our country. Scalia will be eulogized endlessly over the next few days, no doubt he will also “lie in State” somewhere, where many mourners from all over the country can pass by his coffin respectfully, some with copious tears.
So yes we shouldn’t speak ill of the dead, especially the famous ones, who exist in the bubble of our nation’s politics. Then again, when we heard of the deaths of Saddam Hussein, or Mohammar Khadafy, were they eulogized because of their personalities? In their time, these were powerful people, who achieved many years of fame on the world stage. There were no doubt many thousands of their supporters who were saddened over the execution of their particular heroes. It is now said that on this news show on MSNBC that Ruth Bader Ginzburg was his closest friend on the Court and from my perspective I don’t doubt that is true. The people who are actors in our legal system are drenched in collegiality, although those who run afoul of it feel quite differently. As I listen to the news people discussing Scalia, they keep repeating how important this person was in the American scheme of things. Garbling Shakespeare though, “I come to Damn Scalia, not to praise him, for Scalia was not an honorable man”. Here is why.
In writing The Law Is A Whore:
I began: “It is often said of our country in glowing terms that “we are a nation of law”. This is connoted to mean that the country dispenses justice fairly. From my perspective that is but a convenient lie we tell ourselves, equivalent to some religious fanatics believing that God wants them to kill people for His greater glory. The reality is that our justice system is broken, perhaps beyond fixing. For the most part our system of justice works to benefit the powerful at the expense of the rest of our citizenry. The proof of this is so apparent that when writing about the failures of our legal system, choosing what to focus on is an overwhelming task, given the proven injustices throughout our American Justice System at the Federal and State levels.”
“The reality is there exists a symbiotic relationship between attorneys in the profession, no matter which side they are on. Law Schools traditionally teach their students to be able to aggressively argue both sides of particular cases. While there is some wisdom in this teaching method, its flip side is that it also presents an equivocal view of what is truly justice. The “Win” and the “Loss” replace the true justice of the matter. Justice is never about “right” or “wrong” and that is our legal system.”
This is why I believe the sincerity of those being interviewed at the time of his death, who say they will miss Scalia. As I write, Lawrence Lessig just said on MSNBC, “He was an incredibly funny human being”. Is “good humor” an excuse for terrible behavior? From my perspective Scalia did terrible things in the name of his Originalism. This is an example of his beliefs: “Justice Antonin Scalia “defended his pro-death penalty stance by claiming that the Bible forgives those who wrongly apply the death penalty to innocent persons on the grounds that the wrongly convicted will have an opportunity to set the record straight in the courthouse of the afterlife.” here. It is thinking like Scalia’s that has infected this country at all levels of society and to my mind represents the height of ignorance, hypocrisy and moral depravity. This on the part of some who claim their beliefs should dominate our country. Imagine the unfeeling cruelty of this man making a statement such as this. His defenders would no doubt say that is was a factor of his religiosity. That might be true in the same way that those Priests who created and prosecuted the Catholic Inquisition could be excused because they did it for God. Perhaps it was merely the “human failings” of mortal men that allowed Antonin Scalia’s Church to protect hundreds of pedophile Priests for so many years, with the idea that Jesus will forgive them if they become contrite for the sins. Scalia’s pious Roman Catholicism, informed all of his judgments with a cruelty and lack of empathy that truly was the measure of this “well-liked” man. Hate the sin and love the sinner, indeed.
Scalia has stated in court hearings involving homosexuality “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” . If you follow the link you will find six other disparaging comment Scalia has made about homosexuality. As for his views on the equality of women there is this: “Leave it to Supreme Court Justice Antonin Scalia to argue that the Constitution does not, in fact, bar sex discrimination. Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination. The outspoken, controversial Scalia claimed late last week that women’s equality is entirely up to the political branches. “If the current society wants to outlaw discrimination by sex,” he told an audience at the University of California’s Hastings College of the Law, “you have legislatures.” . Yet this is the same Antonin Scalia who argues about Corporations rights and their person-hood in Citizen’s United, arguing that they have the same rights as citizens according to his “originalist” constitutional view. This was also the man who forgot about his whole “judicial philosophy” when he led the Court in assuring George W. Bush’s election in 2000, despite the fact that it trampled the “States Rights” of Florida. Hypocrisy, thy name was Scalia.
Despite his checkered political past as a defender of Presidential prerogatives under Gerald Ford, being outspoken on his views that religion should play a role in the U.S. body politic and his continued defense of corporations against individuals, Scalia was confirmed 98-0 by a Senate with a Democratic Majority. He consistently spoke inappropriately and with partisanship while sitting on SCOTUS. I believe he was a disgrace to the concept of justice, even though he seems to have been such a nice man. His disgraceful behavior was rooted in his religious beliefs, though he used his “originalist” Constitutional views as a cover for what was really his bigotry and bias.
“In the context of United States constitutional interpretation, Originalism is a principle of interpretation that views the Constitution‘s meaning as fixed as of the time of enactment. The originalist enterprise, then, is a quest to determine the meaning of the utterances, the meaning of which cannot change except through formal amendment. The term originated in the 1980s but the concept resonates with formalist theory and is a special example of textualism.” The idea of Constitutional “Originalism” is that the document that underpins our country must be interpreted by discerning the intentions of our Founding Fathers and those intentions are immutable except by amending the Constitution. This idea is not so curiously quite similar to the Biblical exegesis used by Christian Fundamentalists, to justify their various prejudices.
The originalist idea, of which Antonin Scalia being on the Supreme Court can be said to be the greatest champion, has always seemed to me to be a license to interpret via ones own prejudice. The idea that the “intent” of the Founding Fathers, as gleaned through the lens of the beholder, is immutable in discerning Constitutionality is absurd. Our Founding Fathers were for the most part wealthy men in an agrarian 18th century society, among whom many were dependent upon slavery for their economic survival. That these men of more than 200 years ago, should be invested with an almost Godlike prescience in deciding the major issues in today’s America, represents the thoughts of deluded ideologues. Antonin Scalia was no doubt a brilliant man, a highly skilled logician and had a great impact upon our country while on the Court. His advocacy of originalism though, was his rationalization of his own prejudices, foisted upon us by his considerable forensic skills.
I’m sorry for the pain of loss that his family and friends are suffering, I have experienced the sadness and emptiness of that type of loss myself. Yet I can’t in any way mourn the death of Antonin Scalia, because this was a man who in his wake left a multitude of chaos, harmful to many of my fellow citizens and to my country. His concepts unfortunately will live on and their destructiveness will plague this country for many years to come.