The announcement of Scalia’s death at a West Texas ranch had scarcely reached the collective ear before ugly politics reared its head. Both sides of the political spectrum are guilty of rushing to their respective barricades without scarcely taking a moment to honor and venerate the dead. Republicans immediately jumped to the tactic of admonishing Obama not to nominate a successor while many on the left seemed to relish in the death of a longtime adversary without taking the cue of his longtime friend Ruth Bader Ginsburg to mourn the loss of someone who had convictions and consistency that at the very least could be understood, if not loved from a progressive worldview. Indeed, the view of Scalia that I anecdotally see from more than a few social media pronouncements is one of puerile hatred. According to these views, Scalia was everything wrong in America to those with a progressive worldview – bigoted, intolerant, and rooted in a backwards and and anachronistic Originalist Constitutionalism view of jurisprudence that held this nation back from decades of societal progress and harmony.
The ultimate question is whether we desire our jurists in the judicial system to adhere consistently to our original government charter or whether judges should be expected and allowed to enter their own value and moral judgments into the equation. If you personally believe the latter, then what you desire the judicial branch to be is really nothing more than an extension of the legislative branch that is results driven and with one gigantic problem: in most cases and certainly in the case of the Supreme Court they are completely unaccountable to the popular electorate. The framers of our Constitution never intended the judicial branch to make value decisions arbitrarily, rather the judicial branch was wisely crafted with a purpose of adjudication of disputes and conflicts in interpreting the law and with striking down laws that are blatant abuses of the Constitution. On value and moral arguments, the Constitution is largely silent, leaving it firmly within the legislative branch to craft laws that are signs of the times and the will of the people in a democratic process.
Thus, my veneration and respect for Scalia as a jurist rests primarily on the consistent and principled way in which he performed his function as a Supreme Court judge, which was rooted in a predictable and formulaic approach to the laws and historic context as written in the legal codes. If Scalia’s career on the Supreme Court could be summarized into a couple of easy sentences it would be this: ‘Americans, if you want better or different laws, write your local Congressman or vote for someone else. Don’t take the easy way out by putting your hopes in the Supreme Court. Moving the moral current of society is not the Court’s responsibility and vesting that power in the Court is a grave danger to and severely undermines democracy.’ Indeed, the major downside of reliance on the judicial branch to make sweeping decisions: it fails to quell the dissent of the opposition in the same way that resounding defeat at the hands of the electorate driving the legislative process would. Defeat at the hands of the judge is analogous to a referee throwing the game. That leaves the opposition far more bitter and recalcitrant than if they had simply been trounced by a better team. Scalia adhered to the view that the Constitution and the law should determine judicial decisions and that a judge should not artfully construct law to fit their value judgments so as to promulgate de facto legislation from the judicial bench. As such, it is of my opinion that he was a critical bulwark against the judicial branch possessing more power than it was intended in America’s carefully crafted separation of powers. It was not really Scalia’s, or any other Supreme Court Justice’s call to make on bending legislative actions into what they believed was just or unjust. The results of such a process are completely unprincipled and chaotic. In Scalia’s view, it was the legislature that was supposed to handle the crafting of law. Critically, this is the government branch vested with these powers in the U.S. Constitution and concomitantly is the branch directly elected by the people to represent their interests.
Scalia is most reviled these days for his vote and dissent on the issue of gay marriage. I will not carry on about that specific issue here since out of my more libertarian principles I hardly think the state should have been involved in determining what marriage was in the first place. I don’t need a government license to sanctify my marriage nor to deem it appropriate in the eyes of the state, nor by extension do I believe it should it have meddled in anyone else’s private relationships. Government has its role here in adjudicating the inevitable conflicts that will arise in suits and settlements (divorce, separation and division of assets), but I firmly believe that these issues could be handled much like any other contractual issue and in the judicial rather than the legislative branch of government. The real reason for such heavy-handed government involvement is enacting social policy and through tax codes manipulated in vain attempts to spur on marriage that induced all of this mess in the first place. That is all I will say on the matter in this post, but in turning to the hatred spewed out on Scalia for his dissent on this case, I think people got tremendously confused between someone with legal principles and bigotry. One only need to turn to his written dissent on the to understand his motivations, which is essentially that American democracy keeps getting unlawfully sidestepped by 9 Supreme Court Justices. As a result, one can clearly see that the dissent was completely in line with his typical approach to jurisprudence and a preservation of the democratic and legislative process. I have copied the gist of his dissent below below, but in my opinion, the full dissent is worth a read:
“The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”