(no subject)

[seekingferret]

Here, at ghost_lingering's request, some thoughts on the passing of Justice Antonin Scalia.

After Justice Roberts (obviously), Justice Scalia was the justice on the Supreme Court I most admired. (Kagan is third. My feelings about Justice Kagan are weird and ideologically inconsistent and probably have something to do with her vocal identification as a Jew and something to do with her sense of humor.)

I admired Scalia's rigorous and unorthodox conservatism, which was not my own conservatism in many respects, but which was often not the kind of conservatism liberals love to hate. I've heard many of my liberal friends, over the past fifteen years (the age of my consciousness of judicial matters), say that they were surprised to find that they didn't disagree with a particular Scalia opinion. I've never heard them say that of Alito. Scalia thought before he made a decision, and he thought hard and he held himself to as high a standard as he held litigants.

I admired his writing ability, his gift for distilling an argument in an opinion to its meat, to making the complex seem straightforward without hiding its complexity. He was unquestionably the best writer on the court (Kagan now takes his place, I think, perhaps another reason I admire her in spite of our ideological differences), though I'm told that his effort to explain his writing techniques to the public in a massive tome on legal writing were at best a mixed success. And I especially appreciated that Scalia's writing gifts pushed the other justices to do better. There was often a special section in recent opinions from the left-leaning justices dedicated just to responding to Scalia's dissent, and in cases where I didn't care enough to read all of the court's paperwork, I found that just reading this was enough to get to the heart of the legal question.

It is true that there are culture war issues that I strongly disagree with where he came down, and agree with those who feel he caused harm by his stances. But I also feel an appreciation for his struggle, for the difficulty posed by the tension between a love of freedom and an aspiration to live a godly life as one sees it. I don't think he always balanced that tension as well as he could have, but I think his life's work dwelled in that balance.

And I admired his love for the law and the Constitution and the passion with which he served those causes. Scalia was a giant on the court and his presence will be deeply missed, I believe, by thoughtful people on both sides of the aisle.

Comments

[seekingferret]

A little more on this: It's my tendency to see Scalia's dissent in Lawrence in the following sense:

Scalia felt homosexuality was morally wrong, a teaching from his Catholic religion. He also felt it was no business of his as a Supreme Court justice to regulate it, and that the Supreme Court deciding the question was a severe violation of his most deeply held feelings about the role of federalism in American government. His writings in Lawrence have always read to me as a plea for someone else, anyone else, to be the one to make decisions about this kind of thing. I sympathize deeply with this.

[ghost_lingering]

Thanks for writing this up! I always appreciate your take on this stuff, even if I tend to come at it from a different angle. One of the things I try to remember about Scalia, particularly when I see fellow liberals rave against him or when I rave against him (and it's funny -- I see him as exactly the kind of person liberals love to hate, largely on the basis of his positions in culture war issues) (how I hate the phrase "culture war", btw), is how liberals on the court (RBG and Kagan both come to mind) always show great respect for him, despite ideological disagreements, and he them. This is part of why I hate how his seat is going to turn into a highly partisan mess; seats usually are to some extent and certainly other federal court nominees have been during Obama's tenure, but this happening in an election year makes me shudder.

The Supreme Court is the branch of federal government I have the most respect and reverence towards and Scalia has been an inextricable part of that for my entire life (he was appointed the year I was born). When I think of a conservative justice I think of Scalia, even before Rehnquist or Thomas and certainly before Alito or Roberts. It is hard to imagine a court without him.

Re: Lawrence vs Texas, assuming your read is the correct one: if not you (i.e. Scalia), then who? Ethical decisions are difficult; passing them off to someone else isn't something that engenders much sympathy from me -- I have more sympathy for the person who makes the decision, even if it is against what I would choose, than the one who asks someone else to make it. I understand the impulse and I understand is his underlying logic re: the role of the courts, but I'm not sold on passing the buck being the right choice. (From what I recall, I think O'Conner's reasoning is the one that falls most in line with my own, albeit not 100% in line -- I think hers upholds the intrinsic heterosexuality of marriage, which I don't buy.) (I should also admit that I also have a kneejerk negative reaction to people making political decisions for others on the basis of their own personal faith, which is at least partially how I read Scalia's opinion -- as based at least partially on his Catholicism. I joke sometimes that I'm a secular Christian, but at the core of it I have a deep distrust of Christianity, moreso than any other religion, and I dislike how embedded Christianity is in US law. Sometime, if you're willing, I'd love to pick your brain about your own take on the intersection of religion and law, because it's something that I think about a lot, given that we live in a world with many religions that influence laws, but probably not in an unlocked post on dw, ya know?)

ANYWAY, long story short: if someday Scalia/Ginsburg plays at the Met and you go see it, pls take me????

[seekingferret]

ANYWAY, long story short: if someday Scalia/Ginsburg plays at the Met and you go see it, pls take me????

Of course. In the meantime, want to see this next Sunday? http://skygiants.dreamwidth.org/433659.html#comments

[ghost_lingering]

OMG YES.

[seekingferret]

AWESOME

You can buy a ticket here: http://www.poweroutnyc.com/current-show/

[ghost_lingering]

Bought!

[seekingferret]

I'm not sure I've ever read O'Connor's concurrence in Lawrence- Wikipedia says her position was that the law violates the 14th Amendment since it distinguishes between homosexual sodomy and heterosexual sodomy, which to me feels like the conservative originalist argument advanced by some amici in Windsor that bans on gay marriage violate the 14th Amendment because men are allowed to marry women but women aren't allowed to marry women, and this constitutes gender discrimination. And both of these arguments feel to me like the divide between them and Scalia is not over the interpretation of the law, but over how they feel about the result of the law. Neither O'Connor, the amici, or Scalia think that the 14th Amendment should be read broadly enough to require full equality of homosexuals under the law- but O'Connor and the amici think that homosexuals should have full equality under the laws anyway and Scalia didn't.

I agree with you that Scalia's dissent in Lawrence is partially driven by his Catholicism, and I'm unsure how problematic that is. I think the purpose of Scalia's infamous comparison of homosexuality to bigamy, incest, bestiality and various other sexual preferences that remain illegal was not to suggest that he considered homosexuality and bestiality morally equivalent (as critics generally imply), but rather to highlight that these are moral questions that we as a society have always made as a community. That we draw difficult and tricky lines and decide which things we want to allow. And that if you put this moral decision in his hands, he would decide it in accordance with how he understood the morality and the law, and if the people wanted to change it, all they would have to do was get together and go to the polls and change the damned law themselves. If a state law legalizing gay marriage ever came before the Court, Scalia would have been that law's best friend, I think.

[ghost_lingering]

I'm going to have to go back and reread the Lawrence opinions I think -- it's been years since I read them. My own wikipedia perusal just now leads me to believe that I probably agree with Kennedy's opinion on ethical lines, but O'Connor's reasoning in the context of our legal system makes instinctive sense to me as a lay person, which is likely why I'm remembering her concurrence as one that resonated. But I need a refresher.

I can't pretend to know what Scalia would have decided had there been a case about upholding a state law legalizing gay marriage, but I think his body of work and his public statements show someone who was deeply homophobic and brilliant enough that he could easily come up with legal, religious, and social rational and arguments to justify his bigotry. Re: the bestiality quote … I think it's unquestionably homophobic no matter his intent, even though he is not equating homosexuality one to one to the rest of his list. Yes, we certainly come to moral conclusions about various sexual practices, sure. We do that all the time, to varying degrees. But he specifically listed a slew of things with negative connotations that people would consider varying degrees of "immoral and unacceptable" — "fornication, bigamy, adultery, adult incest, bestiality, and obscenity". I think it's incredibly telling that he did not list something like "unprotected vaginal intercourse between a man and woman who are married", even though there are a number of moral questions associated with sex that can lead to babies and the spread of disease. And states have decided they have a stake in such sex: ten years before Lawrence vs. Texas, Oklahoma and North Carolina struck down the legality of marital rape, officially outlawing it everywhere in the US. So it is a form of sexual contact that is, in some small measure, regulated by law. But because vaginal intercourse in a het marriage is culturally accepted, he didn't list it among the types of sex that we might have moral questions about or may want to regulate. Instead he listed bestiality, et all. So, yes, I agree the there are moral questions and ethical questions related to sex of all kinds and a separate, though related, list of questions on how/if/when to regulate various forms of sex, but his list is purposefully inflammatory. He's stacking the deck and being, in my estimation, emotionally dishonest. My distrust spirals outwards from there.

I started writing up a long explanation of my hesitations wrt Scalia's religious beliefs influencing the decision, but I keep adding to it and thinking of more and getting off-topic and I may never finish it, so I'm posting just this now. Maybe later you will get that essay, but not tonight.

[seekingferret]

I look forward to seeing the essay if it happens.

You're right that we can't know for sure what he would do in my hypothetical, but I mean, he dissented in Windsor and affirmed in Hollingworth. One can say that he only affirmed in Hollingsworth because he knew the result of Windsor already, but I find that hard to square with his personality. Maybe I should reread the Lawrence opinions too so we can talk about them on Sunday.