Goodbye and Hello, Old Original


Whatever you think of the opinion, Justice ­Kennedy is now the Thurgood Marshall of gay rights.

[Nods.] I don’t know how, by your lights, that’s going to be regarded in 50 years. I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.

You believe in heaven and hell? Oh, of course I do. Don’t you believe in heaven and hell?

No. Oh, my.

Does that mean I’m not going? [Laughing.] Unfortunately not!

Wait, to heaven or hell? It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

But you don’t have to be a Catholic to get into heaven? Or believe in it? Of course not!

Oh. So you don’t know where I’m going. Thank God. I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

Can we talk about your drafting process— [Leans in, stage-whispers.] I even believe in the Devil.

You do? Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.

Every Catholic believes this? There’s a wide variety of Catholics out there … If you are faithful to Catholic dogma, that is certainly a large part of it.

Have you seen evidence of the Devil lately? You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.

No. It’s because he’s smart.

So what’s he doing now? What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.

That has really painful implications for atheists. Are you sure that’s the ­Devil’s work? I didn’t say atheists are the Devil’s work.

Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe? Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.

Right. What happened to him?

He just got wilier. He got wilier.

Isn’t it terribly frightening to believe in the Devil? You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.

***

This gleeful detour took place in an interview given by the now-late Supreme Court Justice Antonin Scalia to NYMag in 2013. On the face of it, a long semi-serious rant on the existence of the Prince of Darkness is not what one would expect from a serving member of the highest court in the nation. And certainly, the interviewer, mid-way through this excerpt, seems to think it prudent to move along and discuss matters which could be described as non-spiritual. But none of it for Scalia. He had again found that bit of life in which he seemed so often to love residing, where he could both make a real point to an incredulous audience, and playfully take up the mantle of the confounding jester.

How serious a person was he? In some ways, he was the most serious Justice on the court. It was everyone else he assured us that was being unserious. His Originalist interpretation of the Constitution was a novelty when he arrived to the Supreme Court in the mid 80s. While the decades-long trend had been to interpret the Constitution as a living document, in the full context of our time and place (and even with an eye on legislative environment), Scalia was of the opinion that a Justice ought to have a cold narrow eye on the exact meaning of the document when it was written. Period. He happily declared, probably a thousand times in his career, that the Constitution was “dead!” and that was the only way a judge ought to view it when considering a case. This was the role of the Court, he insisted, and if the country didn't like it they could pass a law or amendment through Congress. By his lights, the Supreme Court had to be self-restricting because it clearly had taken enormous – some would say 'activist' – liberties in previous decisions, and in fact continued to during his own career. Sometimes Scalia would agree to follow his narrow definition of his role in government to its preposterous (and cruel) conclusions. From the same interview:

You’ve described yourself as a fainthearted originalist. But really, how fainthearted? I described myself as that a long time ago. I repudiate that.

So you’re a stouthearted one. I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—

Flogging, right? Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.

This has largely been – depending on one's private moral constitution and intuition – either the principled reasoning or the lame excuse given for many of Justice Scalia's opinions during his tenure at the Supreme Court. He voted to gut the Voting Rights act; he opposed the recent gay marriage ruling; he supported the Citizens United decision, increasing the power of wealthy people in influencing national elections; he staunchly supported the death penalty; although the makeup of the court prevented it, he thought Roe v Wade an activist ruling and ought to be overturned. And quite shocking by our standards, although it was barely over a decade ago, he resisted lifting the bans on sodomy in Lawrence v Texas. As usual, he claimed to have a perfectly reasonable – even easy – reasoning for this:

In his 2003 Lawrence v. Texas dissent … Justice Scalia argued that if state sodomy bans are unconstitutional, then a slew of other bans are, too: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of [a previous decision validating] laws based on moral choices.”

It should be noted now that there are many who believe that Scalia's Originalist interpretation is a mere excuse for his ultra-conservative and even bigoted views. And a plausible case can be made that his interpretations are inconsistent and even incoherent under serious scrutiny. Scalia has naturally denied that bigotry has anything to do with his legal views:

Has your personal attitude softened some? Toward what?

Homosexuality. I don’t think I’ve softened. I don’t know what you mean by softened.

If you talk to your grandchildren, they have different opinions from you about this, right? I don’t know about my grandchildren. I know about my children. I don’t think they and I differ very much. But I’m not a hater of homosexuals at all.

I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other.

There was something different about your DOMA opinion, I thought. It was really pungent, yes, but you seemed more focused on your colleagues’ jurisprudence. You didn’t talk about a gay lobby, or about the fact that people have the right to determine what they consider moral. In Lawrence v. Texas, you said Americans were within their rights in “protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” I would write that again. But that’s not saying that I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase [mandate] of a Supreme Court.

However one views this understanding, or compartmentalizing, of civic and private life, one thing we can all agree on: Antonin Scalia is dead. And his death has instantly breathed new life and resolve into the warring (and it increasingly feels warlike) conservative and liberal views of life. Scalia was a fixation for both sides, because he was a particularly colorful, intelligent and interesting embodiment of what one either admired or despised. But he was part of the same old story, and the same old fight. And he was an opportunity for others to answer moral questions in increasingly baroque and indirect ways. The familiar surface-level discussions come to mind. I don't dislike gay people; I just think marriage is between a man and a woman. What about polygamy? What about bestiality? Is that OK too? It's not that I think it's good that a few rich people can buy elections, but they have the right to spend money how they want, right? And the Founding Fathers never intended government to be this big. They would be spinning in their graves if they knew.

Although I'm not convinced by Originalism, at least Scalia had something of an excuse. He had a very specific job. He was required to make legal judgments by the lights of the Constitution as he understood it. And however maddening he could be in public, very few would dare make the case that a judge oftentimes has to make rulings which have legal merit but which may go against his or her personal views. In fact that is one definition of courage. What is most troublesome is when ordinary citizens think that they somehow have the same cross to bear – that they can't possibly give their own plain views on questions of gay rights, or the death penalty, or abortion, or anything remotely controversial, and instead resort to semi-legal tropes that do not address the issue at hand. No, I have to insist on this point: We are not disembodied legal scholars. We are citizens who are to make the laws or elect representatives to carry out our mandate. In this capacity, and even granting Scalia's narrow understanding of constitutional law, our role essentially remains activist. Why is it wrong for gays to marry if a barren straight couple can? Why do black Americans end up disproportionately in prison? Why do we talk about the global warming debate as though both sides were equally grounded in science? Same goes for Intelligent Design. When does a fetus have the rights of a person?

Both fortunately and unfortunately for us, we are not required to decipher the Original Intent of the Glorious Founders to answer these questions. These are questions that 18th century agrarians might not have much of an opinion on. And to the extent that they did have an opinion, many those opinions may have to be instantly discarded as uncivilized by the standards of our time.

Remember again Scalia's curious tangent on the Devil. Nothing in that exchange between him and his interviewer revealed one to have any expertise over the other. It was just two average people talking. Scalia doesn't know any more about whether there's a devil than you or I know. In this capacity, and in the other topics discussed, we are equal citizens. Equal in our right to assert opinions and equal in our responsibility to be honest about what we do not know. Equal to be made foolish by another citizen's honest questioning. Probably because he couldn't help himself, Scalia was more honest about this than most.

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