Against a Hagiography for Justice Scalia

Should we mourn Scalia? Or, at least, observe some measure of “due propriety” now that he’s passed and not dismiss him as a bigot, and a danger to our progress?

Let me start by saying that I think the idea of appealing to rhetorical moderation with regard to *Scalia* is a bit rich — he certainly had no problem asserting that his opponents were fools and villains. But I’ll show a bit more courtesy than he usually did, and not just assert that turn-about is fair play.

So: The first thing to say is that this is, in large part, no matter of personal decorum. It is a question about political power and its consequences.

Do we think the Irish should have mourned Cromwell? Should the Romans have mourned Nero? Should the British coal miners have shown more decorum when Thatcher died? I don’t think so. We are not talking here about the death of some private individual, who we (arguably) owe some decent space. We’re talking about the death of someone who held one of the rarest offices in American politics — a life tenure, supreme and unquestionable, and who was fully prepared to keep on using that powerful sinecure to enforce his peculiar (I’ll be franker: abhorrent) views on the rest of us. Scalia was about as close as any American gets to being a king — though it is enough for my purposes that had enormous power he was still exercising.

My first answer, then, is that this is no neutral figure, but a potent actor. Deaths can be laid at his feet. Not just the capital punishment victims he brushed off, but also the many victims that will accrue as the result of (to start the list), his decision enshrining personal gun ownership as a strong constitutional right, the attacks he supported on the Affordable Care Act’s Medicaid expansion, his body blows to environmental protection, and to labor rights. Let us not forget his staunch opposition to basic human rights for all — contraception, abortion, marriage. His apologies for torture and government surveillance and secret prisons. His frank racism. All of this underlain by his gimcrack intellectual framework that privileged the values of the slave-owning framers of the 1789 constitution far over the framers (for instance) of the Reconstruction Amendments — who were doing their best to renew the country’s compact with its people — and which dismissed the idea that decency not only can evolve, but must.

Scalia was poised to continue acting — among other things, against the continued existence of labor unions (a bullet very narrowly dodged), to deny access to contraception and abortion, to dismantle affirmative action, to further weaken voting rights, and, critically, to forestall meaningful action on climate change. (On all of this, see:…/the-simply-breathtaking-consequ…/

). If there is a party of humanity, Scalia was, consistently, on the other side. The Onion nailed it when it titled its obituary “Justice Scalia Dead Following 30-Year Battle With Social Progress.”

I would wish such a man far from power and very very far from the Court — it is a pity that he ever reached it, and more of a pity that he stayed on. I would certainly have wished him off the bench, years ago. But the Court has life tenure — it should not, but it does. So he continued — Ronald Reagan’s dead hand throttling back our progress. When he died, the life chances of millions of people became sharply better. The majority of our citizens will retain control over their bodies, their votes, their lives, their chances of a healthy future. The Court, and the country, is saved (at least for today, at least for now) with Scalia out of power and the balance of votes on the Court tipped towards justice.

It is a human pity, of course, that he left in death, rather than in retirement. I would rather see him on the faculty of some unpleasant conservative thinktank, or as an increasingly marginalized commentator on the Fox network — a figure viewed as a decayed relic of a past and less good time. But I cannot say that I miss him, at all.

Indeed, the strongest claims against saying all this are probably basically personal. Every death is a deeply felt loss to close friends and family; perhaps they are due some measure of quiet. And perhaps there’s something vaguely coarsening to political or personal discourse, or not done, in celebrating that a public figure is gone — a sense that this is out of bounds, especially if we maintain a sense that political differences need not be personal. Fair enough. The man doubtless must have had some lovable personal qualities and some moments of grace. Any death does, after all, diminish our common share, at least a bit. And given this, it is not genteel to celebrate the consequences of any death.

But, increasingly, I do not think very much of gentility when it is used as a weapon to protect the powerful, and even less when the powerful used their authority largely to wound those below them. I think the claims of politesse look pretty tinny against the immense harm Scalia did — the harm that will live long after him. If I get the vapors, it is not going to be about failing sufficiently to show my respects to a man who showed so little respect to so many.

I do not think death forecloses disrespect, and shouldn’t. Fair weight given to those who loved the man — fair weight (though he rarely gave it to those he disagreed with) to the idea that he may sometimes have been right. But only fair weight. Whatever his personal qualities may have been, for us, as a political figure, Scalia was a bigot, and a quite witting tool for all the forces that maintained the most powerful in power, at great cost to the rest of us. We do not need to mourn him, any more than the victims of any other tyrant need doff their hat as the coffin goes by.

(Satire, I should especially emphasize, and disrespect, and refusal to conform to standards of decorum established by those in power, are the perennial tools of the powerless. And, perennially, they are the tools the powerful urge be blunted in the name of settled quiet and politeness. I think it is far less “polite” to countenance the coercive power of an abusive state over its victims than it is to condemn those who question, caustically, the actions of the state. I presume we do not think, for instance, that the residents of Soweto should have observed a pleasant moment of silence when Botha passed.)

Already, nonetheless, hagiographies are being penned. There will be great efforts to remember Scalia as a lovable contrarian. Clerks will share fond stories. I suppose his personal qualities were sometimes charming and well-considered (other times, not, especially to those he likely did not quite see as people —…/scalia-affirmative-action-black…). All this is mostly irrelevant — he did not meet the many people he harmed and endangered. I think we owe ourselves an accurate accounting, including condemning the unpardonable — and we had better do so lest we forget who the villains were, and wind up letting them metastasize into figures of nostalgic affection. (Consider the way, for instance, we allowed Reagan to be remembered as “sunny” rather than as the callous enabler of the AIDS epidemic, and the butcher of Nicaragua. How sick that anyone would compete for that stained mantle; how unfortunate that anyone was allowed to forget its provenance and quality).

So, cast a cold eye, I say. And breathe a sigh of relief.

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