Antonin Scalia’s Legacy: The Jurisprudence of Death

Posted on February 26th, 2016 by Katherine Franke

Hdlns1-Scalia Assessing the legacy of a towering figure such as Associate Supreme Court Justice Antonin Scalia turns out to be a bit of a landmine. For some, he stood among the Court’s most brilliant, scholarly and thoughtful justices. While for others, he distinguished himself as a bombastic, small-minded, intolerant bully who disgraced the Court with a kind of behavior that presaged the legitimation of demagoguery we now see in the likes of Donald Trump. “If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia,” political scientist Corey Robin recently observed. “Scalia is the id, ego, and super-ego of modern conservatism.”

When Justice Scalia passed away unexpectedly on February 13th, Georgetown Law School Dean William Treanor issued a statement, in which he declared that “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia … [he] was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law.” These encomia went down poorly with some inhabiting the Georgetown law faculty’s more progressive precincts. Professor Gay Peller, a respected scholar of race and the law, took issue with the Dean speaking on his behalf: “I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” Other faculty defended the Dean’s intentions, while both conservative groups of students and students of color expressed outrage, hurt and concern in response to the intramural eulogistic tennis match taking place at Georgetown law school.   More details here.

To complicate matters even further, many liberals stepped forward shortly after Justice Scalia’s passing to note a kind of ambivalent assessment of the Justice’s legacy: he may have been a conservative justice, to be sure, but he was, all would acknowledge, a very nice person. Cass Sunstein, a prominent liberal law professor at Harvard, wrote: The Scalia I Knew Will Be Greatly Missed.

For myself, I can’t say I care that Antonin Scalia was a nice person when not on the bench. When President Ronald Reagan forwarded Antonin Scalia’s name to the Senate in 1986, it was for Scalia to serve on the Supreme Court burdened with the august responsibility of interpreting the constitution, not to be our friend or dinner guest.   It is the robed justice, not the man behind the robe, that deserves our evaluation, to borrow a metaphor from Judge John Noonan’s book Persons and Masks of the Law.

Justice Scalia, like all the Supreme Court justices, did the rounds of visiting law schools on a regular basis, judging student moot court competitions and giving talks about his judicial philosophy and the like. In these contexts he often displayed behavior that was, well, cringe-worthy. Law students would stand before him, arguing a case while quivering with nervousness in their newly-pressed suits, and he would exploit the opportunity to “punch down” as some have described it. He’d insult the student, make belittling quips that would throw them off their game, or tease them. Don’t get me wrong, I don’t think our students need to be coddled. But I also don’t hold respect for a sitting Supreme Court justice who exploited these moments of grossly asymmetric power by bullying the weaker party standing before him.

His behavior with real lawyers and in real cases was not much different. When writing for the Supreme Court, Scalia was often vindictive and gratuitously cruel, taking school-yard aim at LGBT people, women and people of color. The snarkiness that characterized so many of his opinions, especially when he was in the minority, was injudicious and at times appalling.

While his friends may have included representatives of the groups he vilified in his opinions, that doesn’t in any way mitigate the damage he did to the idea that a constitution is a collective compact and a repository of shared values, not a warrant for the privileged to maintain their power. Being smart, or even nice, seems beside the point when great power is exercised in a manner that has the effect of – and often is intended to – humiliate. Great mind? Ok, whatever. Great jurist? Not at all.

In addition, Justice Scalia’s legacy will surely be distinguished by his tendency to be a particularly bad loser. As a member of a Court that has valued collegiality and the principle that nine jurists can reasonably disagree about some of the most difficult legal questions of the day, Justice Scalia chose instead to hurl ugly insults at his colleagues when he found himself in the Court’s minority. In Obergefell v. Hodges, the same-sex marriage case, he wrote that “I would hide my head in a bag,” if he ever joined an opinion as weak as Justice Kennedy’s. And if that didn’t leave enough scorched earth, he continued: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”   Some have described his opinions as “the jurisprudential equivalent of smashing a guitar on stage.”

Even worse, with respect to the substance, not only the tone, of Justice Scalia’s legacy, it could be fairly described as “a jurisprudence of death.” This necro-political valence of his legal philosophy animated an idiosyncratic commitment to reading the constitution as a text written by a dead hand. “The Constitution that I interpret and apply is not living but dead,” he frequently noted. Before Antonin Scalia was elevated to the Supreme Court by President Ronald Reagan, this version of interpretation was embraced only by a right-wing fringe, including Edwin Meese. Perhaps one of Scalia’s greatest accomplishments was mainstreaming an approach to textual interpretation that fixed the meaning of our founding document in the imagined minds of its now long-dead signatories, and aggressively rejecting the notion of a living constitution.

But Scalia’s jurisprudence of death was not limited merely to interpretive method. It also infiltrated the substance of so many of his opinions – particularly those in the criminal justice area. Robert Cover famously observed “legal interpretation takes place in a field of pain and death.” And this has never been more true than for the way Justice Scalia approached death penalty appeals that came before the Supreme Court. In the 1993 Herera v. Collins case, a case involving the question of whether newly discovered evidence that could exonerate a defendant convicted of murder and sentenced to death, Justice Scalia wrote: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” He later reiterated this view in another death penalty appeal in 2009 brought by Troy Davis: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The taunting scare quotes Justice Scalia placed around the word “actually” loomed as a high-stakes taunt and a deadly provocation that collapsed any daylight between the notion of legality and justice: the state can kill an innocent man if the trial he received satisfied a minimal criterion of fairness. Surely a legal system has lost its soul if this is what criminal justice has been reduced to. How does a person who holds this view, and is blessed to hold the highest judicial office in the nation, sleep at night?

And so it is fitting that death found Antonin Scalia while he slept. In his sleep on a hunting trip of all adventures. Even more curiously, the last Supreme Court justice to die while in office was William Rehnquist and President Reagan appointed Antonin Scalia to fill his seat on the Court. Kinda makes one worry about the deadly endowment that awaits the next appointee to this seat.


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