Scalia at Sea

Justice Antonin Scalia was never shy in his defense of originalism, the widely influential theory of Constitutional interpretation to which he subscribed. Only by sticking close to the Constitution’s original intent, which is strictly encoded in its words, can a Justice remain objective in his decision making. “Once you abandon what they [the founders of the Constitution] thought,” Scalia claimed, in a 2009 debate with Justice Breyer, “you are at sea.”

You are at sea – it’s the powerful image Scalia returned to time and time again. For Justice Scalia, originalism was a stable life-raft on an otherwise swirling sea of subjective legal argument. Using originalism meant that his reasoning wouldn’t be exposed to the whims of his personal values, his own sense of right or wrong. Originalism, in contrast to other approaches, removed the subjective values of the judge, and thus offered uniformity and integrity to his rulings.

Many on the left were skeptical of Scalia’s claim. It seemed more than a coincidence that so many of Scalia’s ‘objective’ rulings fell in line with his personal beliefs. Scalia’s most important opinions and dissents – on an individual’s right to firearms, on gay marriage and sodomy, on campaign finance reform, on Bush v. Gore – were so strongly partisan. I have often wondered myself if Justice Scalia was more of a political animal than a pure legal mind, more interested in getting particular results than in sticking to his strict theory of Constitutional interpretation. That, of course, implies that Scalia was repetitively lying about his so-called objectivity.

But Scalia had many friends and admirers, both liberal and conservative, who uniformly paint a portrait of him as honest, passionate, brilliant and kind. Most importantly, everyone who knew him agrees that he was adamantly dedicated to the rule of law. His defenders use his strong – and relatively liberal – 6th and 4th Amendment rulings, which protected the rights of criminal defendants, as proof of his objectivity, examples of his faith in a neutral theory of interpretation. Although there are exceptions to his originalism (many of them well explained in Jeffery Rosen’s excellent piece in The Atlantic), Scalia did generally follow his own set rules. So I have ended up believing his defenders. I don’t think he was dishonest about his objectives or methods. But it is also clear to me that Scalia possessed a huge blind spot when he utilized his own rules. There was something crucial about his own process that he simply didn’t understand.

Too often we assume that a judge’s subjectivity applies exclusively to their values and beliefs. We think it is ruling for what they believe in, getting the results they want, that makes them ‘subjective’. (Scalia claimed as much in the above mentioned debate with Justice Breyer.) But any judge’s personal belief is only a small part of his or her subjectivity. Equally important is her methodology: how she decides the legal questions that she must face. In Scalia’s case, originalism was far from an objective methodology; it was the product of his own subjective life experience.

In “The Constitutional Catechism of Antonin Scalia”, a 1990 article in The Yale Law Journal, George Kannar argues, persuasively, that many of Scalia’s legal opinions show the strong influence of familial and cultural forces. Kannar outlines two of those forces in particular, one literary, one religious.

Scalia’s father was a poetry professor committed to New Criticism, the mid-century literary theory that said – roughly – all poems should be read and analyzed independently of their ‘purpose’, of their author’s intent. Each poem needs to stand on its own feet; the intention behind its writing does not determine its meaning for the reader. That theory was a powerful and important reaction to the dominant historicism of the time, persuasive to many scholars. It was also the bread and butter of Scalia’s intellectual world at home. New Criticism, which has since been amended and attacked by other theories, must have served as a powerful force in Scalia’s life, as it is shockingly close to what he practiced in his own Constitutional interpretation.

In addition, Antonin Scalia was educated in pre-Vatican II Catholic schools, when the Baltimore Catechism was the primary text students memorized and recited, word for word. Doctrine, for American Catholic students of Scalia’s age, was rooted in that text. If you wanted an answer to a religious question, you looked to the precise wording of the Baltimore Catechism to find it. Answers were always available; they were real and concrete; and they were found in the plain meaning of the catechism’s words. This second religious force is also easily recognizable in Scalia’s brand of originalism.

There were, of course, other key forces in Scalia’s life that Kannar doesn’t explore in the same depth: a military school background, his family’s respect for authority and tradition, an immigrant son’s ambition, his only-child status. All of these forces were equally subjective and influential on his intellectual development. I don’t think it’s a coincidence that Scalia’s interpretational methods as a Supreme Court Justice – as well as his integrity as a person – matches up so seamlessly with the linguistic and cultural values of his youth. That claim, of course, stands in direct refutation to what Justice Scalia declared about originalism. It says, in contrast, that Scalia’s methodology was his personality. It says Scalia’s particular brand of originalism was highly subjective. It says it was him.

The personal quality that most amazed me about Antonin Scalia was not his extraordinary brilliance, but rather his blindness to his own origins. How did someone so astonishingly perceptive and intelligent live so unaware of his own method’s subjectivity? How did Justice Scalia remain so unwise?

Excelling in the legal profession is not at all synonymous with learning about and confronting your own biases, your own subjectivity. On the contrary, great law has always been more aligned with limiting and ignoring your subjectivity as much as possible. A preeminent legal mind is supposed to rely on objective methods and techniques, not personal opinions. She is supposed to be profound in reasoning, but stoic and restrained in humanity. While the purity of that division has been long attacked by legal realism and other related critiques, the basic bias holds. Whenever a judge calls attention to his or her own subjectivity, even in a minor way – as Justice Sotomayor did with her ‘wise Latina’ comment in her confirmation hearing – her ability to administer justice is called into question. Judges are encouraged to self-abnegate, not self-investigate. And that encouragement must have been especially strong in a family like Scalia’s, where his father’s professed New Criticism meant ignoring the whims of historical ‘purpose’, the whims of any writer’s or interpreter’s personal history. It makes perfect sense, actually, in the wider culture of law, that a man with as little self-knowledge as Antonin Scalia, but with as much intelligence and acerbic wit, could rise as high as he did and influence so many.

Justice Elena Kagan wrote, in her memory of Scalia, that his opinions will be read in a hundred years, and that his method of interpretation will live on. While that is certainly true, I suspect her comments are colored by her personal affection for a brilliant, warm friend. There is another, parallel truth to Justice Scalia’s legacy. History will not be kind to his opinions. Many of them have a strain of ignorance running along side their erudition. If Scalia had had more self-knowledge, he would have practiced his originalism with the same vigor, but with greater sensitivity, and more refined results. He would have won more important cases. And, most importantly, he would have been a more just, fair and humane judge.

Without self-knowledge, a Supreme Court Justice is lost at sea in the worst possible way – Scalia’s way. Justice Scalia swirled in a storm of personal bias in the very moments he thought himself most objective, most grounded. Worse still, in the blindness of his storm, he dragged down with him millions of suffering Americans – gay Americans, disenfranchised Americans, victims of gun violence – every time he wrote one of his controversial, ‘objective’ opinions.