Justice Scalia’s passing has inspired an enormous outpouring of commentary, some adulatory, some critical, some confused. There’s no shortage of standard-issue commentary on Scalia and his legacy; SCOTUSblog is keeping a running tally. I thought I’d call your attention to a couple of links I found especially interesting, or that said something I actually hadn’t heard before.
First, if you’ve never read Jennifer Senior’s remarkable interview with Scalia from a couple of years ago, you should read it now. It’s quite candid, and it tells you a lot about what made the guy tick.
This rather sad reflection on Scalia’s legacy on the Court was, I thought, pretty good.
This remembrance, if you can call it that, is more angry, lamenting the increased politicization of the Supreme Court in recent years and Scalia’s outsized role in it.
Of course, I cannot help but call attention to my own op-ed in the Washington Post last summer criticizing another aspect of how Scalia’s presence on the Supreme Court has changed it.
Finally, to end on a more positive note, here is a nice remembrance by Joan Larsen, who clerked for Scalia the same year I clerked for Justice O’Connor, and who now sits on the Michigan Supreme Court.
piece. Those of us in politics don’t give judicial philosophy its due.
Originalism always seemed to me a fundamentalist legalism. I don’t know about Hugo Black, but the idea that there’s one, invariable, discernible meaning at the source is bunk.
I can remember when natural-law theories were the bases for liberal or at any rate progressive action and legal defense, for example the Civil Rights movement. Now they are a mainstay of conservative judicial thought.
Raising the question, is judicial philosophy a real thing, or just the gloss that opportunists put on their ideology?
Or maybe its just a case of these abstract principles cutting both ways in practice.
I’m not an attorney. I don’t know. I would think a philosophy would offer an individual justice a guidepost. It’s very hard for any of us to be 100% consistent.
As a individual, I’m a dyed-in-the-wool pragmatist. I tend to judge things based on their effects. I’m also an empiricist. I don’t know how that would fit in with judicial philosophy. I’m not 100% consistent, but I arrived at these descriptors after reflecting on my thinking, not deciding what I wanted to be.
Maybe our attorneys can pipe up if they prefer or have a philosophy? Ronald Dworkin seems to have been a popular liberal, who espoused a judicial philosophy that is referred to as interpretivism.
I thought this anecdote from the Linda Greenhouse piece (link in David’s post) nicely summed up Scalia’s uncritical self-regard:
An SJC is like an umpire, making sure the Constitution interprets itself correctly.
I misspelled SCJ.
Except the constitution has a bad pickle – it can’t be easily amended, but it really needs to be amended from time to time through legislative process…
Thereby all the politicization of the Supreme Court, which is forced to pick up the slack where Congress fears to tread.
Well, I’ll be. Hey, it was kind of cold this last weekend huh? Did anyone else throw a faggot in the fireplace and light it up for some heat? We did over here and my, it was an awful sight. Alternatively, you could fathom your hussy for some heat. Lots of options.
Stay warm out there, everyone.
He was okay with only men bring seen as equal? No laws interfering with the slave trade?
These originalists are the legal cognates of religious figures who stick only the original text, save all the places where they’ve “interpreted” and “contextualized” things to their greater comfort.
> He was okay with only men bring seen as equal? No laws interfering with the slave trade?
Certainly not – but his point is that many things the SC is forced to enact should better be enacted through legislative process.
Though, where he is wrong, is that he’s taking that view to an extreme. Of course words change their meaning – because they depend on a context and a background knowledge that changes along with the ages.
It’s a delicate problem, to say to what extent words change their meaning over time.
I read that when it came out, and I recall thinking some comparison you made was over the top, but I loved the rest of it. From coverage of the rulings, I had felt that way at times — that Scalia was more bombast and invective than legal substance — but I really had no idea. And here was a legal mind with Court experience, confirming!
David, one thing I’ve been hearing (which again, feels true) was that, in his early days, Scalia really was brilliant.He was effective at building his arguments. But, in his later years, he got lazy or more hardline or both, and he often contradicted his own stated views to achieve the outcome he wanted. (RBG, I read, quoted him extensively in her concurrence preserving Obamacare.)
So, long-winded question, but: Is that a fair view?
In recent years, my sense was that Scalia was rather bored with the job, and was counting the days until there was a Republican in office so that he could retire and live out his days writing books, giving lectures, and hanging out at resorts like the one in Texas where he died. Of course, things didn’t quite work out that way.
Someone who was personally warm and generous to ideological
opponents in the personal realm who would’ve been best as that contrarian conservative professor the ivory tower needs now and again. That orthodox fellow who you can argue with over a pint or a fine wine in the late justices case (he couldn’t tell his Porter from his IPA-a mistake the beer swilling Bavarian pope wouldn’t have made).
Both floundered in being influential in positions of power, their treatises and philosophical exegesis was best confined to the occasional book or lecture rather than the terrible real world implications their rigidity had on the institutions they had hoped to guide. Scalia fell short of the top prize while Benedict knew he wasn’t the man for the job he thought he was, but both would’ve been happier as professors and we would’ve probably been a lot more charitable has they stayed that way. I heard Bork was a great guy to have a port and argue Brown v Board with in the faculty lounge-We are very fortunate he stayed off the bench.
Scalia’s ivory tower were the Wall St Journal and the Washington Times he was reading. That’s not very eclectic, to only read newspapers up your ideological alley.
I view the reading of the Constitution much like reading the Koran. Words often have multiple levels of meaning and import.
Many Muslim scholars snort at the idea of western Muslims, they’re happy to count them among the followers since there is always strength in numbers, but they say unless you are able to read the Koran in Arabic much will be lost on you. Further still for some unless you are able to understand some of the Sufi mysticism which accompanies learning the message you will have a less intense level of belief. Scalia could read in the original language, his ability for understanding the mysticism was deep enough for conservatives, maybe not for liberals. Or maybe he was really a Sufi master.
It seems to me that a more immediate counterpart to Mr. Scalia’s “originalism” is “Biblical Literalism”, asserting that the Bible is a literal telling of historical events that actually took place, and Biblical Inerrancy, asserting that the Bible (for many American Protestants, the King James Version — though hands start to wave when we ask “which one”) is the inerrant word of God.
It appears to me that “originalism” regarding the Constitution suffers from the same fatal flaws as similar views of the Bible — among them that:
1. The original authors NEVER INTENDED the text to be understood that way, and
2. The original text is often self-contradictory, and
3. Both rely on a worldview that says that “the Law” or “God” is fixed, static and unchanging.
An even more fundamental issue is the premise that law or the Constitution is REMOTELY like a religion. For those of us who reject the very notion of any “sacred text”, Mr. Scalia’s approach reeked of inappropriate religiosity.
The Constitution is NOT a “sacred text”. There are no provisions in the Koran, the Torah, or the Bible for amending the text. That fact alone is, in my view, more than sufficient evidence to discard the entire edifice that Mr. Scalia unsuccessfully attempted to construct.
…there have been changes to the Bible. Protestants mostly follow the Hebrew Scripture tradition for the OT, albeit in a slightly different order, but Catholic and Orthodox traditions have additional OT books. Different manuscripts also include or omit certain verses. All this to say even the Bible, especially in translation, is not quite as etched in stone as sometimes portrayed either.
The pesky facts that you observe don’t get in the way of the belief system I refer to. Even the KJV had several versions, some reflecting changes and some containing simple copy errors.
The similarity between what Christians call the “Old Testament” and Hebrew Scriptures is, to my eyes, rather more apparent to Christians than to Jews. During my brief (2-3 year) participation in Sabbath services in Brookline, I found virtually NO resemblance between — for example — the psalms read in services and those used by Christans. Some of the text in some of the books was similar, but much of it was, as far as I can, unrelated.
The overwhelming majority of Biblical critics, as nearly as I can tell, wholeheartedly embrace the premise that, as you observe, “the Bible” was a living text through most of the several thousand years of its assembly. It is more a library than a single work, and the various perspectives (many times multiple retellings of the same events and pericopes) are what make it unique and valuable to historians.
Some Biblical scholars, including Bishop John Spong, remind us that the synoptic Gospels were created by Jews deeply familiar with the Hebrew Scriptures. They suggest that the synoptics, when spread across the calendar and suitably aligned, work rather well as a “midrash” on the texts from the Torah that was being read by Jewish communities each week (this reminds me a bit of those who listen to “Dark Side of the Moon” synchronized with “Wizard of Oz”).
There is essentially no evidence that these texts were written as “history”, and an overwhelming body of evidence that they were not.
The Hebrew Scriptures, in particular, are most certainly NOT cast in stone as the Literalists would have us believe. The several accounts of Samuel, for instance, are clearly multiple mutually-incompatible descriptions of the same individual. They can’t all be literally true or “inerrant”.
All of this, in my view, demonstrates the fatal flaw at the core of Mr. Scalia’s “Originalism”. I am disappointed that such a fundamentally incorrect premise has had such an undue influence on American law and culture.
Meaning of many things in the Bible change over time. Nobody would have us believe that the world was literally created in seven days. Or that humanity was literally started with Adam, Even and their children. or that the world is seven thousand years old.
Although if you go back as far as the 1600s, pretty much everybody believed all those things literally.
Legal documents should better not have multiple meanings. Else we’d need other courts to interpret legal documents put out by our courts. Hermeneutics and law don’t quite go together well.
…way too many people today would in fact have us literally believe the items in your first paragraph, for reasons passing all understanding.
When you write “Nobody would have us believe that the world was literally created in seven days”, “humanity was literally started with Adam, Even and their children”, and “the world is seven thousand years old”, you ignore the ENORMOUS number of fundamentalist Protestants who live in America today.
My point is that not only does a HUGE segment of America believe these things, but — more importantly — it is just this failed meme that Mr. Scalia built his “originalism” doctrine around.
Legal documents should better have a single meaning AT A SINGLE TIME. That meaning most certainly does change over time, though. I’m pretty sure that many of our legal documents about intellectual property predate computers, smart phones, wired homes, and so on — not to mention self-modifying programs, programs that produce other programs, programs that produce other programs and learn how to improve those “children” at each pass, and so on.
We would not WANT a legal document to have exactly one unchanging meaning for all time.
According to St. Thomas Aquinas, the Bible had four levels of meaning or ‘senses’ of Scripture: the literal sense and three spiritual senses – the allegorical, the moral, and the anagogical senses. That was Catholic tradition. It lasted quite a while. Fundamentalism was a modern development.
The Qu’ran is also read and interpreted differently, by sects, by schools of thought, by different imams.