If you are a news junkie like I am, it has been nearly impossible to miss all of the tributes to Supreme Court Justice Antonin Scalia over the last few days. And I suppose that the tributes are somewhat justified because he was an enormously consequential figure – for the impact that he had on the Court, for the impact he had on the way we look at the law, and for the sheer length of his tenure on the Court.
Much has been said about his quick wit, his personal warmth and charisma, his supposed towering intellect (something with which I beg to differ), his skill as a wordsmith, and his friendship with members of the opposing ideological divide. Several times it was noted that for all his supposed brilliance as a jurist, he was more often than not on the losing side, and that his sharp written opinions were all written in dissent.
Monday evening, Charlie Rose devoted his whole show to Scalia; the first half were interviews with David Boies (who appeared before the Court many times in cases ranging from Bush v. Gore to the recent case legalizing gay marriage), Adam Liptak, NY Times correspondent for SCOTUS, and Jeffrey Toobin, legal analyst for CNN and The New Yorker magazine; and the second half featured extended excerpts from two interviews Charlie had with Scalia, one in 2008, and the other in 2012.
It is the interviews with Scalia themselves where, if you carefully listen to what he is saying and critically analyze his words, you can see his deceitfulness and intellectual dishonesty in defense of his unyielding ideology. He has no problem with being hypocritical in support of his beliefs, rational or not, just as every other ideologue does.
Consider his argument for Originalism in interpreting the Constitution. He, like the rest of the Originalists, held that the Constitution is a “dead” document (he called it “decided” but when pressed would concede that he considered it “dead”) rather than a “living document. His chief argument in support of that position is that if the document had been presented as a document “that meant whatever the nine justices said it meant”, it never would have been ratified or adopted.
And he is correct – as far as it goes. If you misrepresented Constitutional jurisprudence so dishonestly, you would undoubtedly get such a result. But if you presented that the document had a mechanism to allow it to adjust itself to advances in knowledge, understanding of human rights, and ethics, and would therefore not become irrelevant or an anachronism, that would be a virtue increasing the liklihood that it would be adopted. That is especially true considering that the Founding Fathers were the radical progressives of their day, not right wing nut jobs who want to turn the clock back to a dystopia that they desire but that never really existed. And that is why the document has endured for so long. Originalism will not survive nearly so long as the Constitution.
He makes the point that the Constitution says nothing about abortion or gay rights. Again, he is correct insofar as it goes. But those things were not issues at the time and were outside the realm of public consideration. But today they are, and the principles outlined in the Constitution must apply. If we were to use his reasoning, the document has no bearing on electronic surveillance, or communication, or anything involving technology created after 1787. And that would also include any firearm more advanced than a muzzle-loading musket, which was cutting edge technology of the time.
So while he was indeed a consequential figure on the Court, and I do respect and recognize that, I do not respect his intellectual integrity. In the end, he was just another idealogue trying to mold this great country into his desired product, by hook or by crook.