Sunday, February 14, 2016

Antonin Scalia

Antonin Scalia died Saturday at the age of 79.   Mr. Scalia was the senior associate justice serving on the Supreme Court. He was appointed by President Reagan in 1986.   Mr.Scalia was no wallflower, and there was little confusion on where he stood on a particular issue or case that was before the court.   His questioning in oral arguments before the court were filled with challenges that were sometimes pointed, sometimes humorous, sometimes condescending, but always focused on his particular reading of a statute and its relation to the Constitution.  A self-described "originalist", Mr. Scalia was at his most aggressive when he saw legislation or a decision by the judiciary as "growing" the meaning of the Constitution as it was originally written.   Mr. Scalia was highly critical of legislation such as the Affordable Care Act.  He was highly critical of the Congress not doing their job when he said that they would essentially "rubber stamp" approval of the Votings Rights Act: "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. "And I am fairly confident it will be enacted in perpetuity unless -- unless a court can say it does not comport with the Constitution."  He was an avowed opponent of same sex marriage and wrote a scathing dissent in Lawrence v. Texas which affirmed the overturning of Texas' anti-sodomy laws.  Mr. Scalia was a committed Roman Catholic, and it permeated his work on the court with the exception of the death penalty.  His views were consistently conservative, with a tilt towards limiting the role of the Federal Government and promoting States Rights.  In this, he was the darling of the conservative intelligentsia and groups such as The Federalist Society.

Mr. Scalia was one of the most consequential justices in recent history.  His role in Bush v. Gore and other significant arguments in front of the Court have left an indelible mark for aggressive conservatism.  Revile him or revere him, people asked about Scalia were rarely moderate in their opinions about the fiery jurist.   He evoked emotional responses from most people when asked their view on the justice.   I am on the side of revulsion in Mr. Scalia's opinions.  I highly disagreed with his "originalist" perspective on the Constitution and believe as Jefferson suggested that the document was indeed fungible and needed to be upgraded as time progressed:  "Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched; who ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Each generation is as independent as the one preceding, as that was of all which had gone before. - ".  It would have been an interesting debate between Justice Scalia and the third President of the United States.

Regardless of what one thinks of Scalia, he was an important figure in the United States history of jurisprudence.  His legacy is one that will be debated for some time, but it is not difficult to say that he influenced the direction of the court towards a highly conservative posture for the last 30 years.

The biggest problem I had with Justice Scalia was his integration of his faith into his work.  To me, that was a violation of his oath and he didn't seem to have a problem with wearing his religious point of view on his chest.  Now, to be clear, it was rare that he invoked religious perspective into his writings on opinions, but his public statements were highly sectarian, whether talking about homosexuals, abortion or many other topics he felt strongly about.   I have a personal problem with this as I expect full objectivity in the Supreme Court.  I know that is naive, but I think unless our judiciary is clean of political and theological perspective, we will always see decisions that are less about objective justice and more about appeasement of an interest group that the maps to the majority's way of thinking rather than interpreting the constitutionality of the law on its merits.

Tell me what you think,


1 comment:

  1. I've always thought that if we are to strictly interpret the Constitution and it isn't a living document then a strict reading of the 2nd Amendment would only allow "arms" that were available in the late 18th century. Muskets and bayonets for all.