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There has been much praise of Justice Scalia. I cannot recall such an outpouring of commentary, affection and praise (with a few dissenting voices) for a deceased Supreme Court Justice. All of it, from the left and right, is accompanied by a chant-like chorus of acknowledgment of his brilliance.

I’m not so sure. My view of Scalia, formed entirely by non-judicial reflection on his career, is considerably less admiring. He was smart, could frame arguments with the best of them and had a quick and often acerbic wit. His personal charm was legendary and led to the unlikely friendship with his judicial polar opposite, Ruth Bader Ginsburg.

Scalia championed a judicial core principle dubbed “Originalism” where the textual meaning of a statute or the Constitution was the final arbiter. His key point of leverage was that there was no other objective basis for determining whether a law or a case had been decided properly. As he argued, all other forms of legal interpretation were clouded by other meanings that were inserted, developed or had evolved since the original document or decision. Hence, they could not function as forming the foundation for law.

Well, this sounds good but, in my mind — honed by a half-century of studying cognitive psychology — is not only naive but it’s just empty rhetoric. The original meanings of the words and clauses of the Constitution are long gone. Languages change, meanings shift, culture drifts. There are, there must be, many circumstances where it simply isn’t possible to ascertain what the framers meant and, even if we could, those meanings would often be rendered either moot or nonsensical in today’s world. The idea of a “dead Constitution” (one of Scalia’s favorite phrases) is connotatively empty. Take three (in)famous cases.

It is just bizarre to think that the 1st Amendment which states that Congress shall make no law abridging the freedom of speech could apply to a corporation. Corporations don’t speak. Corporations aren’t individuals, nor are unions. Nothing in the amendment pertains to collectives.

The notion that a company can refuse to provide legal and legislated services because they offend the owners’ religious views is incoherent. In Hobby Lobby, the religious Catholic owners claimed they had the right to deny medical coverage for birth control. Scalia concurred. I do wonder … suppose the case had been brought by a company owned by devout Muslims who claimed they had the right to refuse service to women who entered their establishment without being accompanied by a man or Fundamentalist Mormons who cling to the doctrine that those of African descent are inherently inferior and can be refused services?

A militia was, particularly in 1791 when the Bill of Rights became part of the Constitution, a group of individuals whose function was the protection of the state from incursions. But, in Heller, Scalia argued that somehow this collective’s rights were transferred to individuals and they didn’t even have to be members of a militia. In fact, a militia didn’t even have to exist.

These are just three of Scalia’s more outrageous decisions and, of course, are among the more sensational. It turns out that my untrained outrage is shared — and by, of all people, Richard A. Posner.

In 2012 Posner wrote an insightful review of Reading Law: The Interpretation of Legal Texts which Scalia co-authored with legal authority Bryan Garner. The hefty volume was considered to be Scalia’s magnum opus, his final exegesis outlining, defending and clarifying his Originalism and detailing how it guided his legal career.

Posner is no flaming liberal. He was appointed to the Federal Court of Appeals for the Seventh Circuit by Ronald Reagan. He is considered to be among the most respected conservative judges, though there’s a a bit of Libertarian in him. He is also one of the country’s most prolific legal scholars and is, according to his biography, the single-most cited jurist.

Posner trashed Reading Law. Just took it apart, page by page, argument by argument, position by position. What he found was damning. Scalia’s scholarship was shoddy, poorly developed and relied in most cases on cherry-picking the parts of decisions he was using to support his Originalism. The full review is long and thorough but it’s pretty much summed up in this short paragraph:

“A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”

And this neatly encapsulates my read on Scalia. His views on life, family, culture, society, sexuality and personhood, his deeply held beliefs about birth, death, age, race, gender — all formed before he ever even thought of studying law were the true foundations for his legal decisions.

He was a devout Catholic, a member of Opus Die. His brilliance was manifested, not by some uncanny ability to fathom the original meaning of the text of the Constitution, but by his adroitness in ferreting out ways to exploit the ambiguities inherent in it and finding clever ways to use them to arrive at the conclusions he had already reached.

It is wrong to praise him, as most have, as a conservative judge. He just may have been the most radical jurist to ever sit on the court.

Reader Comments (1)

Well, the last day of his life was spent killing beautiful little birds that he didn't need to eat to prevent starvation. So that's something else that can be said of him.

February 22, 2016 | Unregistered CommenterJudy ross

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