No Agenda? A Humanist View of Justice Scalia

By Niose, David | The Humanist, March-April 2010 | Go to article overview

No Agenda? A Humanist View of Justice Scalia


Niose, David, The Humanist


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AT FIRST GLANCE Joan Biskupic appears almost ideally qualified to author a biography of Antonin Scalia, the Supreme Courts most vocal and controversial justice. An experienced reporter with legal credentials, Biskupic has covered the Supreme Court for two decades and is already the author of a well-received biography of Scalia's former colleague Sandra Day O'Connor.

Yet as one begins to digest the details of Scalia's saga, one realizes that a psychology degree, rather than a background in law and journalism, might be the better qualification for putting Scalia's life and work in perspective. A qualified analyst, much more so than a legal scholar, could perhaps make sense of the seemingly inconsistent stew that is Scalia jurisprudence.

Like no other Supreme Court justice before or since, Scalia is famous (or infamous) for his uncompromising positions and combative style, his judicial opinions that often burst forth with brazenly injudicious rhetoric, and for his frequently sarcastic dismissal of opposing views. Indeed, Scalia's reputation can perhaps be best summarized by the story of a visit Scalia made to a college campus, where he met with students after giving a speech. One student approached Scalia and mentioned that he had named his pet fish "Justice Scalia" in his honor. Someone nearby then asked, "Do you have other fish named after the other justices?"

"No," the student replied. "Justice Scalia ate all the others."

Scalia's style certainly makes for interesting reading but, as Biskupic points out, it's his role as a prime figure in building and defining conservative jurisprudence--which itself has helped fuel the conservative movement as a whole--that makes him an important subject for biography. From empowering the conservative Federalist Society in academia to playing the role of outspoken dissenter in his early days on the Court to now seeing many of his views adopted by one much more receptive to his arguments, Scalia has arguably done more than any other single person to move the United States to the right over the last quarter century. Phrases such as "activist judges" and "legislating from the bench" have become regular ammunition in the arsenal of conservative politicians, thanks in large part to the political marketability of Scalia's judicial approach.

As Biskupic aptly explains, Scalia prides himself on many things, but perhaps nothing more than claimed consistency. That is, by championing the "originalist" constitutional philosophy, which approaches constitutional issues mainly by considering what the Constitution literally says and asking what its framers intended, rather than attempting to apply evolving modern standards to the Constitution, Scalia is able to claim intellectual honesty. Though many will disagree with the outcomes of his analyses, he nevertheless claims without blushing that he applies a consistent originalist standard.

Viewing the Constitution through an originalist lens, Scalia is of course highly critical of Roe v. Wade, which ensures women a right to abortion, because the Constitution is silent on the issue of abortion. The same originalist approach leads him to conclude that he cannot view the death penalty as unconstitutionally cruel and unusual, because capital punishment was commonplace in colonial times and is even expressly mentioned in the Constitution itself. If it was acceptable to the Founders, who are we to say otherwise?

Indeed, claimed intellectual consistency is so important to Scalia that he is quick to point out that his honest application of originalist jurisprudence sometimes requires him to reach conclusions that, from a policy standpoint, he disfavors. Hence, he has reluctantly sided with flag burners on free speech grounds CI don't like scruffy, bearded, sandal-wearing people who go around burning the United States flag," he explains), and his reading of the Sixth Amendment has overturned mandatory criminal sentencing, a somewhat surprising result for a justice with a tough, conservative reputation. …

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