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Published On: Wed, Feb 17th, 2016

On the Passing of Justice Antonin G. Scalia

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ScaliaIn January 2013, the late U.S. Supreme Court Associate Justice Antonin G. Scalia  declared the U.S. Constitution “is not a living document. It’s dead, dead, dead.”

Justice Scalia made the remark at Southern Methodist University law school indicating his exasperation with school children coming to visit the Supreme Court and describing the Constitution as a “living document”.

Justice Antonin Scalia is dead.

The U.S. Constitution will live, live, live on as a living document for as long as there shall be an American people.

Diogenes Laërtius, the biographer of ancient Greek philosophers, is credited for originating the aphorism expressed in the Latin maxim, “De mortuis nil nisi bene [dicendum] (“Of the dead, nothing [spoken] unless well (truthfully).”).

I write of Justice Scalia’s  passing without malice but extenuating nothing he has said or written.

Indeed, I shall write of Justice Scalia here as I have written about him as a “reigning” Supreme Court justice.

Over the past few days, there has been an effusion of tributes for Justice Scalia from the powerful, the out-of-power and the power-craving. But not from the powerless man and woman in the street. Few probably ever heard of the “lion of the law” or his “legendary” judicial career.

President Obama said Justice Scalia was “one of the towering legal figures of our time.”

Pres. George W. Bush twitted, Justice Scalia “was a towering figure and important judge on our Nation’s highest court.”

Former President Bill Clinton said, “Even though we disagreed on nearly everything, I always kind of liked Justice Scalia… he never pretended to believe in something he didn’t…”

Attorney General Loretta Lynch declared Justice Scalia was “a lion of American law”.  Sen. Ted Cruz said Justice Scalia was “a lion of the law, a lion of the Constitution”.

Donald Trump said, “The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY!”

Bernie Sanders said, “While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court.”

It is hard to disagree with the grandiloquent panegyrics of jaded and forked-tongue politicians who say what they don’t mean and mean what they don’t say.

I don’t know what to make of the pedantic eulogies of Justice Scalia’s disciples. I do not share in the “beatification” of Justice Scalia as a modern day “American Moses” to whom Providence revealed supreme legal knowledge and wisdom as he sat in judgement on the U.S. Supreme Court.

I tend to agree with Oscar Wilde who observed, “One has a right to judge a man by the effect he has over his friends.” A fortiori, it is fair to judge a judge by the effect he had on his nation’s legal landscape for three decades.

I disagreed with Justice Scalia on practically everything.

I disagreed with him on constitutional interpretation.

By his own words, Justice Scalia declared  the U.S. “Constitution is dead, dead, dead.”

It must have been totally terrifying for school children to hear their “living Constitution” declared dead three times over. Is Santa Claus dead too? How about the Easter Bunny?

I believe the U.S. Constitution lives, lives, and shall live as a living document forever, at least for as long as there is a nation called America.

Justice Scalia filtered all constitutional questions through his antiquarian lens of original intent. He said, “Examining what the Founders meant when writing the Constitution is the best method for judging cases.”

Justice Scalia believed the Nirvana of American constitutional interpretation is “originalism”. He boasted, “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult.”

That reminded me of a line in Winston Churchill’s speech in the House of Commons in November 1947: “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

My humble view is that Justice Scalia’s originalism is to constitutional interpretation as African dictators’ democracy is to Churchillian democracy.

I tend to agree with Thomas Paine that the U.S. Constitution is unlike any other. Payne said  what distinguishes the U.S. constitution from its European counterparts is the fact that it is “not the act of a government, but of a people constituting a government.”

I would argue the U.S. Constitution is an act of  “We the People”, not “We, the Founders”.

I believe the Founders acted in the name of “We the People”.

What the Founders drafted in the name of “We the People” was a deeply flawed document which excluded human beings forcibly brought to America from Africa and condemned to suffer in perpetual bondage and servitude.

In his “originalism” doctrine, Justice Scalia for three decades sought to take us back to the “Big Bang of the Republic” and search for answers to constitutional mysteries in the space-time warp of 18th century America.

I must confess that I have never believed the U.S. Constitution to be Scripture unalterable by human mind or hand. Neither have I ever believed the Constitution was handed down to the Founders by Providence as a Second Decalogue for the establishment of a new City Upon a Hill.

If the Constitution is to be understood, interpreted and applied, I would argue that the meaning understood by the “People” AND their descendants should take precedence over the dictates of the Founders from the grave proclaimed by self-appointed oracles and necromancers.

I believe a governance document frozen in time and space in the 18th century is unlikely to resonate with or have relevance to Generation X’ers and Millennials.

I disagreed with Justice Scalia on his legal reasoning and characterization of the Affordable Care Act. He described the majority’s decision upholding the Act as “pure applesauce” and “interpretive jiggery-pokery.” I think that is a nice way of saying the majority’s decision upholding the law is horse feathers.

I tend to confuse the right to life as the right to health care. If you get seriously sick and have no health care, you die. Ergo, you just lost your right to life.

I disagreed with Justice Scalia on gender discrimination. In an interview in 2010, Scalia said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” Speaking at a law school in California in 2010, Justice Scalia added, “If the current society wants to outlaw discrimination by sex, you have legislatures.”

Is it because the Constitution does not prohibit discrimination that there were no women among the Founders?

Is it because the Constitution does not prohibit discrimination that the Founders turned a deaf ear to Abigail Adam’s plea to “remember the ladies” when drafting a new “code of laws” for the fledgling nation?

Is it because the Constitution does not prohibit discrimination that American women were denied the right to vote until 1920, less than 100 years ago and 133 years after the Founders launched the Republic?

Is it because the Constitution does not prohibit discrimination that Art. II, section 1 provides “The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years…”? (I wonder what Hillary Clinton thinks about this provision in the Constitution.)

Is it because the Constitution does not prohibit discrimination that female full-time workers on the average make only 79 cents for every dollar earned by men?

Should contemporary American women’s rights be determined by “a dead, dead, dead” Constitution guided by the spirits of dead, dead, dead men?

I thought Justice Scalia’s view that “discrimination” against the expressive freedoms of the legal fictional person, the “corporation”,  was rather bizarre.

In Citizens United v. Federal Election Commission (2010), Scalia joined the majority in elevating the corporation to the highest level of democratic citizenship and endowed it the right to free speech under the First Amendment on the same level as human beings (arguably including women).

I registered my disagreement on Justice Scalia’s views on gender discrimination in my 2011 Huffington Post commentary “Corporations Are Persons, But Women Are Not?”

I disagreed with Justice Scalia most passionately on minority rights.

Justice Scalia did not believe the long history of discrimination, unfair treatment and second class citizenship of African Americans amounted to a hill of beans in the formulation of legal and constitutional remedies.

Less than two months ago, I let Justice Scalia know how I felt about his views on this issue in my commentary, “The Soft Bigotry and Hard Hubris of Justice Antonin Scalia”.

I was particularly disturbed, more accurately enraged and outraged, by his attitude and exhibition of intellectual and judicial arrogance during oral argument in Fisher v. University of Texas (a case challenging a policy of the University of Texas at Austin which considers race as one of various factors in its undergraduate admissions process.)

Justice Scalia remarked:

There are — there are 11 those who contend that it does not benefit African-Americans to —  to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less — a slower — track school where they do well.  One of — one of the briefs pointed out that — that most of the most of the black scientists in this country don’t come from schools like the University of Texas.

They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them.

I’m just not impressed by the fact that — that the University of Texas may have fewer.  Maybe it ought to have fewer.  And maybe some —  you know, when you take more, the number of blacks,  really competent blacks admitted to lesser schools,  turns out to be less.  And — and I — I don’t think it– it — it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as  possible.  I just don’t think —

Justice Scalia manifestly did not think “it’s a good thing for the University of Texas to admit as many blacks as possible.”

Or for that matter the University of California, the University of Minnesota, Harvard University….

What I heard in the wake of Scalia’s stinging words during oral argument was a cruel narrative and venomous message of racial inferiority and intellectual feebleness of young African Americans seeking to attend higher education. I asked myself, “How could a judge on the nation’s highest court be so mean-spirited, so predacious, so unkind?

How could the man extolled for his “legal brilliance” ignore the history of exclusion against African Americans in Sweatt v. Painter in which the Supreme Court in a unanimous decision desegregated legal education in Texas in 1950?

Perplexed in the extreme, I wondered if Scalia had an undiagnosed psychological disorder which made him spew hate and bigotry?

I concluded he did.

I “declared” he suffered from “Hubris-Nemesis Complex” which “involves a combination of hubris (a pretension toward an arrogant form of godliness) and nemesis (a vengeful desire to confront, defeat, humiliate, and punish an adversary).” The victim of “Hubris Nemesis Complex” also suffers from a related “destructive-constructive Messianism” syndrome, a condition in which the victim “presents himself as being—a virtual messiah or savior who is on a crusade and has a fate, destiny, or mission that is historic, both timeless and time-changing in its implications. All is politicized in the name of the mission and the high principles it engages.”

I respect the views of any judge on matters of public concern; but I expect judges on the highest court in the land to express their views with temperance, moderation, restraint and equanimity.

I regret to say that Justice Scalia never missed the opportunity to present his views with  impetuous arrogance, unrestrained hubris, audacious pomposity, offensive smugness and embarrassing temper tantrums.

I regret very much that Justice Scalia was so disagreeable that he brought out the worst in his ideological adversaries. He brought his frustrations from chambers into the mean legal streets and provoked a brawl with anyone willing to take him on. His arrogance and hubris invited his adversaries to show little respect to him as a person and as a judge. In that Scalia invited disrespect to the high court itself.

President Clinton said Scalia was not a “pretender”. On that quality of character, I wholeheartedly agree and applaud Justice Scalia.  I am not a pretender either. For whatever failings I may find in Justice Scalia, being fake is not one of them. He meant what he said and said what he meant. When it came to political correctness, Justice Scalia was all about “full speed head, damn the torpedoes.”

I admire Justice Scalia for speaking his mind. But I wished he had spoken his mind as a judge on the highest court in the land instead of some self-important and opinionated blogger.

I wish Justice Scalia would have pretended about one thing: To disagree with the lawyers who appeared before him and his ideological adversaries without being queruously disagreeable.

Thinking about Justice Scalia’s replacement, I wonder if Justice Scalia would have thought the Founders would approve of a vacancy  on the Supreme Court going unfilled for as long as two years pending the outcome of a presidential election.

In a lone dissent in Morrison v. Olson, (deciding whether the Independent Counsel Act was constitutional), Justice Scalia used the metaphor of the “wolf clad as wolf” to talk about the “allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish.”

I wonder if the President Obama and the Republican-controlled Senate in seeking to replace Justice Scalia would confront the “wolf” clad as wolf or the “wolf” clad as sheep in preserving the equilibrium designed by the Founders.

I ask the obligatory question: What is Justice Scalia’s legacy?

After three decades on the Court, I am not sure about the body of majority opinions Justice Scalia has authored which will form the foundation of his legacy for coming generations. I have read many of his scathing dissents which often denigrate the intellectual capacity and professional integrity of his  colleagues thereby casting a dark shadow on the moral authority of the Court. Justice Scalia said the Supreme Court is a “threat to American democracy.” He claimed, “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” He said, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Such intemperate statements depicted Justice Scalia as the guardian archangel of American democracy defending against 8 mischievous and malicious fallen angels.

I believe a legacy of dissent is more appropriate for the political dissenter than a judge who served on the highest court of the United States for three decades.

Were I to sum up my views on Justice Scalia, I would turn to Shakespeare’s Julius Ceasar and change only two words:

Friends, Romans, countrymen, lend me your ears.
I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones.
So let it be with Caesar.

So let it be with Justice Scalia!

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