Antonin Scalia, one of the judges sitting on the Supreme Court of the United States, died Saturday. To say that his death has provoked many controversial opinions would be an understatement.
What concerns me, in particular, is the demand for propriety–respect and reverence–upon the death of a public figure. It is a peculiar expectation, though perhaps driven by an impulse to remind ourselves and each other that the same fate awaits us all.
Indeed, we will all die. But few will die having caused as much damage to the politics and civil society of their era as Justice Scalia, and for that he deserves at least some special consideration.
Scalia’s foes–of which he had many–speak of respecting the man, if not his views. He is regarded as a brilliant jurist, with a sharp wit and a keen intelligence. While I don’t doubt that these things are true about the man, I find it deeply troubling that there should be anything to admire in a man who turned his intellect directly toward trampling the rights, even the basic human dignity, of his fellow Americans.
Scott Lemieux of The Guardian offers some perspective:
More importantly to some is that, had Scalia’s dissents ultimately shaped America, women would not have reproductive rights, the federal government could not effectively regulate healthcare, LGBT people would not have the right to engage in sexual intercourse without fear of arrest – let alone alone the right to marry – and states could single them out for legal disabilities. Women could be excluded from state educational institutions, public schools could teach creationism in science classes and prisoners could be assaulted by prison guards. And, in large part because of Scalia, in America today, the Voting Rights Act has been gutted, the rights of employees and consumers have been curtailed, Brown v Board is more likely to be used to stop integration than to promote it and moneyed interests increasingly dominate elections.
I find it difficult to reach for kind words and solemn respect toward individuals who showed so little to their compatriots. This is putting aside Scalia’s legal philosophy, which is pure nonsense on its face: the idea that objective meaning can be found in legal codes and documents, sometimes dating back centuries. Law is, in fact, an art of interpretation. To suggest that there is a finite, knowable, objective, correct meaning in any document is to misunderstand, essentially, a couple centuries’ worth of philosophical thought. It is, to put it bluntly, to deny reality.
Scalia was, if nothing else, an expert at denying reality–both the reality of the documents he purported to find the true meaning in, and the contemporary reality to which he vulgarly applied it. What separates great legal minds from mediocre ones is the ability to find new, unique meanings in the same original text, rather than endlessly insist on one particular meaning under the misapprehension that laws are unchanging machinery into which new circumstances can readily be fed, producing the proper outcome. After all, if laws are not open to significant interpretation, why require lawyers, and judges, and juries? Why is evidence not merely fed into a computer or some other machinery, which processes it through a legal framework, then produces the appropriate verdict? One might dismiss the concept as being too new as a reason that it hasn’t been implemented, and yet extremely similar cases have managed to produce vastly different outcomes, because legal process is not deterministic machinery, but highly contextual and dynamic. Either Scalia never understood this, or he cynically used subjective interpretation to forward claims he called objective but knew were not. This leaves one with the choice that he was either ignorant, or a fraud.
When a public figure dies is not the time to produce a whitewashed version of their history. The last people who require respect are the dead–they are the least able to appreciate it. What this means, then, is that calls to “show some respect” have little to do with genuine reverence for the departed, and are instead cut from the same playbook that implores us not to “politicize this tragedy” every time there is a mass shooting. To politicize is to contextualize, and to contextualize is to provide information enough to make informed judgments. To judge dead men like Scalia on their merits is to condemn the living who follow the same path. To demand respect for the dead is to demand respect for repugnant belief systems, to allow them to flourish and endure. It’s a tactic to trap the future within ghosts of the past, to flatten the dimensions of possibility to satisfy those who refuse to acknowledge anything else exists.
This does not, of course, apply to private citizens. None of this should be read as a justification for the likes of the Westboro Baptist Church to protest soldiers’ funerals with their hateful message. Given the limited impact a private citizen is ever likely to have on their broader society or its politics, it would be senseless to support outpourings of scorn against individuals who never wielded significant public power. To put it another way: those who considerably influence society must then face, if posthumously, criticism of that influence.
Though I am not always inclined to agree with Glenn Greenwald, he had appropriate words on this topic regarding Ronald Reagan’s death:
Though he became more popular after leaving office (like most Presidents), it was that week-long bombardment of hagiography that sealed Reagan’s status as Great and Cherished Leader. As media and political figures lavished him with politicized praise, there was virtually no mention of the brutal, civilian-extinguishing covert wars he waged in Central America, his funding of terrorists in Nicaragua, the pervasive illegality of the Iran-contra scandal perpetrated by his top aides and possibly himself, the explosion of wealth and income inequality ushered in by “Reagonmics” which persists today, his escalation of the racially disparate Drug War, his slashing of domestic programs for the poor accompanied by a deficit-causing build-up in the military budget, the racially-tinged (at least) attacks on welfare-queens-in-Cadillacs, the Savings & Loan crisis resulting from deregulation, his refusal even to acknowledge AIDS as tens of thousands of the Wrong People died, the training of Muslim radicals in Afghanistan and arming of the Iranian regime, the attempt to appoint the radical Robert Bork to the Supreme Court, or virtually anything else that would undermine the canonization. The country was drowned by a full, uninterrupted week of pure, leader-reverent propaganda. This happened because of an unhealthy conflation of appropriate post-death etiquette for private persons and the etiquette governing deaths of public figures. They are not and should not be the same. We are all taught that it is impolite to speak ill of the dead, particularly in the immediate aftermath of someone’s death. For a private person, in a private setting, that makes perfect sense. Most human beings are complex and shaped by conflicting drives, defined by both good and bad acts. That’s more or less what it means to be human. And — when it comes to private individuals — it’s entirely appropriate to emphasize the positives of someone’s life and avoid criticisms upon their death: it comforts their grieving loved ones and honors their memory. In that context, there’s just no reason, no benefit, to highlight their flaws. But that is completely inapplicable to the death of a public person, especially one who is political. When someone dies who is a public figure by virtue of their political acts — like Ronald Reagan — discussions of them upon death will be inherently politicized. How they are remembered is not strictly a matter of the sensitivities of their loved ones, but has substantial impact on the culture which discusses their lives. To allow significant political figures to be heralded with purely one-sided requiems — enforced by misguided (even if well-intentioned) notions of private etiquette that bar discussions of their bad acts — is not a matter of politeness; it’s deceitful and propagandistic. To exploit the sentiments of sympathy produced by death to enshrine a political figure as Great and Noble is to sanction, or at best minimize, their sins. Misapplying private death etiquette to public figures creates false history and glorifies the ignoble.
To attempt to discuss Scalia’s life and influence without analyzing his politics, then, is itself to manipulate the man’s biography for political ends. To speak no ill is to suggest his views and decisions were tolerable, appropriate, even righteous. Former President Richard Nixon–perhaps one of the most devious, most dangerous men to ever occupy the Oval Office–saw himself spoken of in reverent tones upon his death.
Mr. Kissinger described Mr. Nixon as "one of the seminal Presidents" in his conduct of foreign policy. "He stood on pinnacles that dissolved in the precipice," he said. "He achieved greatly and he suffered deeply. But he never gave up. In his solitude he envisaged a new international order that would reduce lingering enmities, strengthen historic friendships and give new hope to mankind. A visionary dream and possibilities conjoined."
One could imagine some harsh words await Henry Kissinger upon his death, as well, but of course his comments at Nixon’s funeral went largely unremarked. Nixon’s crimes are acknowledged yet minimized. Instead, his gumption and determination are praised–traits that led him to seriously contemplate nuking Vietnam. It is fortunate (certainly for the people of Vietnam, if not for all the world) that he was talked out of it.
Some may consider it unfair that a life may be judged by single moments, or by persistent flaws that manifest as egregious mistakes. We are all human and thus imperfect. We are all hopelessly complex, and leave behind more than one or two major achievements or disgraces. But for those who act on a national or global stage, forgiveness should not come cheap and should not be so easily granted. When those with the power to save or destroy lives choose poorly, it is difficult to find room to sympathize for the decisionmaker over those brutalized by the decision.
Scalia will certainly be remembered, and so too should be his legacy, which exists for me as a deep scar in the body of American justice.