Monday, February 15, 2016

On Justice Scalia's Passing--Civility and Pain, and Making Room For Both

My immediate reaction to the news of Justice Scalia's sudden death was, like many people's, incredulity. That soon gave way to trying to think through the judicial and political effects this will have in a presidential election year. But many conflicted feelings quickly followed, too.

Let's get this out of the way: Scalia was a very polarizing guy. I disagreed with a significant portion* of his votes on the high-profile cases that make headlines, and I found some of his assumptions about how to interpret the constitution maddening. I believe that he stood in the way of significant social progress on racism, women's rights, LGBT rights, reproductive justice, and a host of other important issues. And the way he expressed his opinions--disdainful of the other side's reasoning, often sardonic, and (perhaps most painfully) very witty--didn't help make the disagreement go down any easier. (Which is a good thing, in that it certainly made me consider his and my positions more deeply.)

But all that being said, I don't think anyone who has known him (not that I did) has been of the opinion that he was anything other than brilliant, too. His writing was the most persuasive of any Justice on the Court today. He knew what he was talking about and he had many, many ardent supporters. He was a human being, with all his flaws and triumphs.

Which made it hard to read some of the pieces from fellow liberals. Most of the experiences I read from people on the left were, at their kindest, along the lines of "I'm certainly not glad a human being died . . . but he was getting in the way of progress, so . . ." And some explicitly began by stating they would be "speak[ing] ill of the dead"--and with "great enthusiasm and passion" at that! The Onion (which I absolutely adore) had an uncomfortably glib headline up within an hour or so of the news breaking.

My personality gravitates much more towards Justice Ginsburg's touching perspective, which noted that while she and Scalia "disagreed now and then," the disagreement was always very cordial and, ultimately, helped strengthen Ginsburg's own opinions. She even said she and Scalia were "best buddies" for decades, as has been well documented. I want there to be robust debate on important policy questions, but always with civility and respect for the human beings--the children of God, our siblings--on the other side of every issue.

And yet. When I said I disagreed with his stances on race, women's rights, LGBT rights, and reproductive justice, to name a few--those are all things that I have the luxury of considering academically. Fox News's bluster to the contrary, there's no such thing as reverse racism or a culture of oppressing white people in this country today (and there isn't going to be one in the future, either). I will never have to worry about whether my gender will be an issue with old boys' clubs at work. I'm not gay, bi, or trans, and my marriage in Nevada in 2014 went forward without a hitch even when other loving couples couldn't get married there. I will never have to worry personally about whether I would need an abortion, and if so, whether I would have access to a safe one. Most of the things I disagreed with Scalia about weren't personal for me. (I'm a big fan of "ask not for whom the bell tolls"-type stuff, but there's obviously a real distinction between your own life and body being oppressed or harmed versus experiencing that pain via empathy.)

Because of that, I don't feel entirely comfortable feeling uncomfortable with the posts that are not sad about Scalia's death. How many Mormons were willing to respect government authorities--whether in Missouri in the 1830s or the federal government in the 1880s--and peacefully, respectfully debate with them when they felt persecuted? While we (white people) may tend today to prefer (and caricature) Martin Luther King as the "good" civil rights leader, I can't find it in me to argue that Malcolm X, who was willing to stand up and defend himself, his family, and his people by any means necessary, was wrong. I think I can fall victim to smugness in a lot of ways myself, and one would be to glibly dismiss the real pain that Scalia's actions inflicted (and continues to inflict) on many vulnerable people in this country. I should feel uncomfortable--if not more--about that.

So I'm sad Scalia died. I didn't like his jurisprudence. I recognize his first-rate mind. I hated the real-world effects of (many of*) his decisions. I was moved by Justice Ginsburg's tribute to her friend. I honor the pain of those Justice Scalia hurt, and will not say they shouldn't feel that way or that they need to be "nicer" about it, not when it's something I can consider from my privileged perch. It's complicated.


* To be fair, he sided with the more liberal members of the court on a number of criminal procedure issues (and probably some other issues I'm not aware of/am forgetting at the moment). I appreciate that he was principled.

Update - Also, here's a taste of some of his complexities:

(Part 2 is here)


  1. I mean, if we're going to say it's always wrong to be cruel to others, then I'm fine saying it's wrong to be gleeful about Scalia's death, even if his decisions did cause pain. The death of another human being is never cause for celebration, even if we disagree or were harmed by his decisions.

    1. Yeah. I guess I think of that as the higher law, though. If someone killed a loved one of mine, I might very well want them to face the death penalty, and I don't think that's a sin, per se. But I do think it's better and the more Christ-like thing to refrain from returning killing with killing. So the people who were hurt by Scalia's decisions, and are in some sense glad he died, won't get any condemnation from me, though I try to highlight those who take the high road as exemplary. I dunno, it's still complicated. (Not sure if I explained any of that well, either.)

  2. Thoughtful comments- thanks for sharing, Austin.