Sunday, February 21, 2016

Death and Justice Scalia

It is startling to find that Justice Scalia was frail, and perhaps he himself did not realize that this was so. He seemed so vital and dynamic, often maddeningly so if you didn’t agree with him. (I disagreed with him fairly often, while also admiring his bravura skill in legal argument, but this is not the occasion to revisit any of those disagreements.) A man as devoted to family as he was would not have gone on a solo vacation far from home if he thought he was in failing health. It is good to lead an active and productive and long life up till the very end, as he did, but I hope that he died in his sleep and did not have to know that he was dying alone.

No one knows what awaits us on some other plane after death. Justice Scalia, a devout and traditionalist Catholic, may have died with confidence in life everlasting. What Judaism says about this matter, according to one of my Reconstructionist synagogue’s rabbis, is quite unsatisfactory; that is, apparently the sages just haven’t sorted this one out. In the King James Bible, David says in the Twenty-third Psalm that he “will dwell in the house of the Lord for ever”; in the Reconstructionist prayerbook, he says only that “I shall come to dwell inside the house of The Eternal for a length of days.” 

But Justice Scalia’s death makes crystal clear what awaits us here. Within less than three hours of the news of Scalia’s death reaching the media, Senator McConnell had decided to go public with his objection to President Obama nominating anyone to fill Scalia’s seat, and the Republican candidates for President all concurred in their debate a little later that same evening. In other words, here on earth the living take note of the absence of the deceased, and proceed to business. The New York Times reports that official Washington “paused” yesterday to remember Justice Scalia, and that pause was respectful, but meanwhile life emphatically goes on.

Yet Justice Scalia will be remembered by many, and that certainly counts for something. He was, it seems, a gregarious man who travelled widely and spoke in many venues; his biographer will have a lot to do collecting the stories of what he said and to whom. I happened to meet him twice, once at Columbia Law School and once, more recently, at the banquet of the New York Law School Law Review, at which he was the featured speaker. Before his talk, Teresa and I went to say hello. He didn’t remember having met me before, which I thought was perfectly reasonable. But he went on to surprise us: he said something to the effect that he admired people who devoted their lives to law teaching, and recalled, self-deprecatingly, that he had felt he was growing bored in his last years of teaching, and I think he said that that weakened him as a teacher. Teresa and I felt he was very gracious to us that evening. His son’s remarks at his funeral make clear that Scalia saw himself as an imperfect person, a sinner like everyone else, and perhaps we encountered that humility that night.

I’ve read recently that he believed that he was waging a war of ideas, not a war against people. In his words, “I attack ideas. I don’t attack people.” That’s a distinction that isn’t always easy to adhere to, since it is people who hold ideas, and when ideas are attacked as silly or stupid, those who hold them not unreasonably suspect that they too are being assailed as silly or stupid. Justice Scalia’s dissents were often harsh, and I think that diminished his influence within the Court. But in principle the idea that one can sharply disagree about ideas, yet still respect and like the people with whom one disagrees, is a humane and democratic one. It must also be part of what enabled Justice Scalia to be such good friends with Justice Ginsburg.

I can’t resist adding that the distinction between ideas and those who hold them is also rather South African.  "Play the ball and not the man," Michael Corbett – the last chief justice of the old South Africa and a respected and quite progressive jurist -- urged, and that soccer metaphor made the same point. The more we play the ball, or in other words the more we engage with the ideas and reasoning of those with whom we disagree, the more we implicitly affirm that there are in fact right answers to our problems and that we are engaged in a good-faith effort, along with our adversaries, to find them. The more we affirm that there are right answers, in turn, the more we maintain that the legal (or moral) world rests on, or seeks, objective truth. Scalia certainly believed that there were right and wrong answers to legal questions; many of South Africa’s greatest lawyers and judges have believed that too. The fact that on many points Scalia and his South African counterparts today might have believed in almost diametrically opposite answers doesn’t prove that any of them were wrong in believing that right answers exist.

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