Mimesis Law
17 September 2019

Justice Scalia Is Dead; Long Live Politics

Feb. 16, 2016 (Mimesis Law) — Justice Antonin Scalia died over the weekend, resulting in a range of responses. There were, sadly, many who were publicly crass about Scalia’s death. Others took a moment to reflect on the humanity of an oft hated public figure. And still others wanted to focus on the work and potential legacy of the man:

Justice Scalia leaves a monumental legacy of books and opinions; colleagues on the Supreme and lower federal courts whose views he has affected; law clerks and students he has taught; and attendees from hundreds of speeches touched by his infectious enthusiasm for the law as he understood it.

No future justice can hope to rival Justice Antonin Scalia, but we all can and should continue to learn from his legacy.

Even the stats geeks at 538 found a way to quantify Scalia’s legacy:

To get a sense of Scalia’s impact, I tallied up all mentions of justices by name in Google’s n-gram data set of words and phrases from scanned books. I found that Scalia has been the most written-about jurist in American English for most of the last 15 years. The last justice to receive such attention was the liberal icon William Brennan; Scalia is by far the most conservative justice to earn this distinction since 1940….

That’s a little surprising, as my guess would have been Justice Kennedy.

Certainly, Scalia has influenced the Court and present-day constitutional interpretation because “we are all originalists” now. It remains to be seen what Scalia’s ultimate impact on the law will be, although some have already tried to write the first draft. And three of my co-bloggers have given their take on his death here, here, and here. As Nicholas Taleb has pointed out, time is the ultimate filter. It’s simply too soon to determine whether Scalia will have a legacy that outlasts his own time on the Court.

But it appears that the merit-based eulogies of Scalia were vastly outnumbered by the discussion about the political fallout of his death. This led to my co-blogger’s lament:

Within minutes of word of Justice Scalia’s shocking passing, the legal world devolved into the banal politics of the day. It’s not surprising. It couldn’t be stopped. But it was still a pathetic reminder that we are a nation of petty people lacking in grace.

It would have been nice to have a moratorium on the politics of the next nomination until Justice Scalia is laid to rest.

This wasn’t a request, but a lament. We were well past any hope of taking a deep breath before spewing love, hate and political consequences. Sadly, the cancer of knee-jerk reactions metastasized across the Twitters.

We should all share in the lament. It was indeed a surprising and saddening moment, even considering he was 79. And he had an outsized impact on the law for a single Justice.

Yet, the impulse to rush to politics is understandable, or at least explainable. First, Scalia is a lawyer, and who really likes lawyers? Your computer has problems, the tech guy fixes it or sells you a better one. You go to your doctor, get treatment and get better—of course every time but the last time. But if you go to your lawyer, you’re told that litigation will be expensive and time consuming, regardless of how “good” your case may be. And then after all the formalistic fighting, you get less than you hoped and spend more than you wanted.

On top of it, he was a judge. While they may not wear funny wigs here, they do a job that isn’t all that comprehensible to most people. And the idea that judges are really just politicians in robes is commonplace. Who weeps for the death of politicians doing incomprehensible jobs?

Yet politics is drama. Reading a judicial opinion, authored by someone other than Scalia of course, is usually boring. Trials might have moments of intense drama but most of the legal system is administrative boredom. On the other hand, handicapping the struggle between the President and Senate looks exciting. Guessing who the President is going to pick to replace Scalia feels like something is happening and you are involved in it. Perhaps if you and enough of your friends talk about it, then the President will pick your candidate—somehow. And talking endless about how his death impacts the Presidential race gives 24-hour news something to talk about it.

Plus, we can collectively revel in the drama of accusing powerful politicians of hypocrisy, or abrogation of their duty, or we can read all about assassination conspiracy theories. It certainly is crass to indulge our base nature, but ‘if it bleeds it leads’ is still the journalist’s motto. No doubt that stirring political controversy is good for ratings and circulation. It’s truly reality television. The legacy of a public figure is just boring stuff. And who really wants to read an opinion about the civil rule governing class actions when you can see the Senate Majority Leader and President fight?

Moreover, the selection of Supreme Court Justices is undeniably a political process. Those of us that live in states with judicial elections know that while judicial decision-making isn’t political, the selection process is, indeed, quite political. And any political selection process is a zero sum game. Only one person can be selected; everyone else is a loser. No prizes are awarded for runner-up.

Life tenure further compounds the zero sum nature of selection. In most of politics, the next election is right around the corner. There’s always a chance for the voters to “get it right” next time. But in all likelihood, the next time this seat opens, the Senate will have turned over and President Obama will be quite old or dead. To most politicians, this is probably seen as close to a permanent decision as they will ever make. Regardless of whether life tenure should be changed, it’s the system we have now. And the exciting fights that confirmation hearings produce gives us a real life soap opera, e.g. the Clarence Thomas/Anita Hill hearings.

So, Nino Scalia will be remembered by his family, friends, and loved ones. And a number of his admirers will honor Scalia, the man, and his “towering legal figure.” But Associate Justice of the United States Antonin G. Scalia held a high political office. As such, his death is predictably the source of political gamesmanship; it’s been that way since the early days of our Republic.

If we are angels rather than humans with a lesser nature, then we could have had a moratorium and given a great jurist his due respect. But politics will outlive us all.

Main image via Flickr/Forest Wander

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