Tuesday, February 16, 2016

Antonin Scalia and the Death of Controversial Figures

I learned about Antonin Scalia's death on Twitter, either the first or second piece about it that I saw was from The Onion with the headline "Justice Scalia Dead Following 30-year Battle With Social Progress" And this roughly sums up my feelings about Scalia.

For those who don't know Antonin Scalia was a United States Supreme Court justice appointed by Ronald Reagan. During the Renquist Court he was the second most conservative justice and he is credited as one of the intellectual fathers for the originalist interpretation of the constitution. Scalia was quick witted, boisterous, confrontational, passionate and at times very funny. I watched a number of speeches he gave years ago because I found him a compelling speaker. Intellectually his ideas have great appeal on the surface, the Supreme Court should interpret the constitution as it is written and not impose conditions, clauses or rulings that do not stem from the Founders' original vision.

However, for as appealing as the originalist interpretation of the American constitution is it has incredibly negative social impacts on the United States which is why Scalia was so deserving of The Onion's headline. It would not be wrong to say that the votes Scalia cast and opinions he wrote had a tangible negative impact on the lives millions of Americans. The litany of cases ranging from civil rights, affirmative action, gay rights, the power of the state, regulating business and finance generally gave more power to the powerful.

There tends to be a pattern when a major figure like Scalia dies. First there is genuine surprise and perfunctory well wishes, this is followed by that person's critics dancing on that person's grave, then the backlash to that criticism, often summed up by "have some respect," and then long combative essays are written as the body is laid to rest debating the man or woman's legacy. As much as you may believe that you'd always be respectful there is probably some public figure that rubs you the wrong way enough that you would take some satisfaction from their passing. When Jim Flaherty passed away I had mixed feelings. Like most people he lived somewhere in the gray, he had very troubling positions on a number of social issues and his role in the Harper years left much to be desired (to put it briefly), but I was not at all comfortable cheering the man's demise. I think that was at least partially driven by the fact that he had left public life.

In the United States the justices of the Supreme Court sit for life. Some choose to retire but many die on the bench. Openings on the Supreme Court are so rare that presidents may only get a chance to fill one or two vacancies. At the start of the Roberts Court the United States Supreme Court lurched radically to the right. Many of the controversial decisions handed down from the court have come from this period where there were four very conservative judges, Scalia, Thomas, Alito, Roberts and Anthony Kennedy often siding with them. This is how you ended up with cases like Citizens United which basically made it possible to spend unlimited money on campaigns.

Therefore Scalia's death under a progressive president is to tremendous benefit to the United States to the eyes of many. Even supporters of Scalia recognize this as they argue his replacement should not be selected until after the election, hoping a Republican can name a Scalia acolyte to the court.

Obviously it is unseemly to be happy at the passing of a fellow human being. I'm sure if Scalia retired two years ago and passed away there would be a much more sympathetic tone to his legacy. There is a simple truth that someone's hero is often someone else's villain. When Vladimir Putin dies there will be great sadness in parts of Russia I'm sure, and others will clink their glasses. Sadly the same is true of Barack Obama, Stephen Harper and Justin Trudeau, but the public vote on these figures and can remove them, that is not the case with a despot like Putin or a judge. It would seem wise to me for opponents of the recent deceased to contain their glee, but at the same time just because a public figure passes does not mean a whitewashing for their cannonization needs to begin either.  

If you want to learn more about the Supreme Court you might want to check out Jeffrey Toobin's book, The Nine, my review is here

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