Justice Antonin Scalia, a towering, argumentative figure on the Supreme Court, died this morning, Saturday, February 13, 2016 in the Big Bend region of West Texas. The Court's first and only Italian-American, he was 79 but looked and acted younger, as least from my distant viewpoint. Even so, how "unexpected" is death at age 79, the age at which my vigorous mother Laura McKeachnie Rasmussen died? Scalia was a very human justice, a very talented writer, and a very one-sided interpreter of the law. Many of the Court's quotable lines from the last three decades come from Scalia. With his careful thought and Christian devotion, Scalia stands as a worthy heir to John Adam's gift of government under law. Adams, says David McCullough, was the first to have the idea of putting the judiciary in its own separate branch, instead of having it under the executive branch.
The enduring interest of my blog is: How Democracy Works Best. I believe it perfectly fair to say that Justice Scalia misunderstood how it works best in multiple ways. To me it is clear that virtually all of the five or six Supreme Court (SC) decisions most harmful to 21st-century democracy in these last 30 years came with Scalia's support and push. I believe in inclusive modernity. We're not now 13 scared little colonies between wilderness and ocean, and John Adams would not want us to act like we are, even though in 1789 that was the only way they could act, because that's what they were. I further believe in nonreligious American democracy, and I don't think Scalia shared that belief. He wanted religion almost everywhere anyone could get it. The people can and in my view must be religious to find a good future, but the government cannot be religious.
Here's an example. We must have the right of privacy. We must be able to control our own bodies and our own reproduction. To me that means abortion as a right subject to certain reasonable state regulation. We can argue about how much regulation is proper, but we can't argue about whether abortion is a right if we want equal protection under the law. Scalia would have nothing to do with this. I am completely thankful he was never granted the chance to commit what would have been his greatest sin against human rights: he made it clear many times he would have ignored the intimate, private, pregnancy-related rights of women by overturning Roe v. Wade. If the female has equal protection under the law, she must today have such rights defended by society at large. Justice Scalia was a sometimes strident Catholic, seemingly ever-ready to push his notions of religion down all our throats. C. S. Lewis, the great Christian thinker and novelist, was once described as wanting to use the answers of the 19th century for the questions of the 20th. Scalia's originalism to me looked like C. S. Lewis in a black robe, trying to answer 21st-century questions with answers from 1789--the 18th century.
I don't think we can expect that to work very well.
Scalia was on the wrong side in Citizens United, which helps money corrupt and control politics.
Scalia was on the wrong side in Bush v. Gore, interfering in what was clearly a matter of state election law, to openly harm the image of the court as it secured the appointment of candidate Bush. Careful review (see book Jews for Buchanan) shows that many thousand more Floridians attempted to vote for Gore than for Bush. Buchanan himself admitted he received at least 3,000 Jewish votes. The butterfly ballot confused these Jews, scared and alienated by Buchanan's positions, into marking a vote for him instead of for Gore.
Scalia was on the wrong side of dozens of religion-related decisions, always trying to get government to sponsor and promote the Christian God and Christian morality, which we do at the peril to our freedom.
In spite of all this it is clear that Scalia was (I would say "is") a really nice guy, personable and warm. For example, he developed warm relations with at least two of his more liberal partners on the Court, Ruth Ginsburg and Steven Breyer. He took trips with Ginsburg, including one to Asia in which they each rode an elephant, and did legal seminars with Breyer. What's your relationship with Justice Scalia, the ever-optimistic Breyer was asked, "We're friends." What a heartwarming short summary. So many times in life, the very best thing that can be said is "We're friends."
Scalia being at heart such a fundamentally good guy, I find it ironically appropriate that he died at a time when his leaving the Court can help the country correct its age-old tendency to treat white males as they were treated when John Adams and the founders gave us this gift of democracy: like the only citizens who matter. This has to happen for us to move more toward love and fairness, toward a better world.
Since 1968 when Warren Burger became chief justice, there has been either a slight or a strong conservative lean to our top Court. Scalia replaced Burger on the Court. Burger was very conservative, but as chief justice often served as a swing vote. (This is spelled out in many-page detail in Woodward and Armstrong's book, The Brethren). Chief Burger wanted to be in the majority so he could assign who wrote the opinion, and often changed his vote to do that. He also wanted it to look like he was providing leadership when in practice he was sometimes following. Perhaps not a sin. For example, Burger voted with the 7-2 majority in Roe v. Wade, although he wrote a concurring opinion that Roe "does not create abortion on demand," which it did.
Scalia was never flexible enough to be a swing vote. Obama will now presumably be able to replace him with a moderate liberal justice similar to the two he has already put in place, Sotomayor and Kagan.
We have eight remaining members on the Supreme Court, four conservatives and four liberals. Yet the liberals are mostly moderate liberals, and the conservatives are mostly hard right conservatives. There do not seem to be any far-left liberals like Justice Douglas used to be. There is no Bernie Sanders on the Court, although, until yesterday, 4/5 of the conservatives were as far right as Sanders is left.
In summary, Scalia, with the Federalist Society behind him, has rewritten what we consider to be orthodox views of constitutional law. Nobody except maybe Robert Bork was claiming, before Scalia came, that the one right way to read the Constitution was figuring out exactly what the framers wanted when they adopted it. Now that's one fairly standard approach. Problem #1: John Adams and Thomas Jefferson disagreed on many things--the framers were not of one mind. In practice originalism seems to mean we should still have slaves and consider a black as 3/5 of a citizen. In 1789 essentially no man believed in women owning property. Well may we note on this blog devoted to the legacy of John Adams that his wife Abigail Adams was one of the first women to take property in her own name, likely in violation of the legal tradition of the day. Scalia would have run her out of court! Scalia did not have in mind the kind of America that can help lead the world into the future; he fought that kind of open, loving, many-colored America tooth and nail. He was a good man, a very good man, but I am soooo relieved his part of the fight is over.
Now if Ruth Bader Ginsburg, three years older than her friend Nino Scalia, would just have the sense to retire the day after his funeral! Maybe she will die the day after Marco Rubio is inaugurated, so that she, like Sandra Day O'Connor, can leave her seat to someone about five shades more conservative than herself. That appears to be her aspiration.
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