Antonin Scalia’s Indelicate Brand of Civility

Justice Antonin Scalia
Photo by Stephen Masker, CC-BY

Supreme Court Justice Antonin Scalia, who died unexpectedly this past Saturday, is not someone whose name we usually associate with civility. Reflecting on his life for The New York Times, Bruce Allan Murphy, law professor and author of Scalia: A Court of One, writes that he changed the United States Supreme Court… more than President Ronald Reagan could ever have foreseen when appointing him. And he writes about the importance of his advocacy of “originalism” and “textualism” – the theories that judges should decide cases according to the “public meaning” of the words in the Constitution or its Amendments as understood by the American people in the state constitutional ratifying conventions.

But as Scott Lemieux of The Guardian said on Sunday: as enormous as his influence on American jurisprudence and American public culture has been, Antonin Scalia’s legacy is in many ways one of polarization.

Scalia’s public persona was that of provocateur, and he was perhaps best known for being colorfully undiplomatic and eminently quotable. Sometimes his penchant for provocation ran toward the crass, like in 2012, when he was asked by a Princeton student about his moral judgment of homosexuality, and he responded: if we cannot have moral feelings against homosexuality, can we have it against murder?

Sometimes his provocation turned personal, straying into the territory of ad hominem attacks. As Bruce Allan Murphy writes, he called Justice Sandra Day O’Connor’s 1989 opinion in Webster v. Reproductive Health Services “irrational,” “totally perverse” and “not to be believed.” And he belittled Anthony Kennedy’s 1992 opinion in the Lee v. Weisman school graduation prayer case as “psychology practiced by amateurs” and “incoherent.”

But as often, he was wickedly incisive in his critiques. As in 2005 when, in a speech at the Woodrow Wilson International Center for Scholars in Washington, D.C., he defended his judicial philosophy by dismissing the idea of moderation on the bench. We say we want moderate judges, Scalia told his audience [PDF], but:

What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one.

Yet despite all his bluster – despite the decisions (and especially the dissents) that earned him a reputation as a warrior in the conservative cause – Scalia was in his own idiosyncratic way an advocate for a particular brand of civility.

In his dissenting opinion in Obergefell v. Hodges – the case that legalized same-sex marriage across the United States – he wrote [PDF] that the most unfortunate consequence of the majority opinion was that it shut down debate:

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…. 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.

Until, he said, the courts put a stop to it.

Whatever else readers may think about the case or the tenor debate in the states that led up to it, Scalia’s point here is fundamentally about civility. What he calls for, to paraphrase the Institute’s definition, is disagreement without disrespect, and negotiation in the face of deeply rooted and sometimes passionate differences of opinion. Policy-making is an adversarial process, he tells us. But it’s supposed to be that way. The point of civility is not to eliminate conflict in public life, but to make it bearable, productive, and as useful as possible for all parties.

This is something we see in other aspects of how he conducted himself. In a 2013 interview with Jennifer Senior in New York Magazine, Scalia talked about how he chose his clerks. His preference, he said, is for clerks whose predispositions are quite the opposite of mine — who are social liberals rather than social conservatives. The advantage of that, he said, is productive debate: that kind of clerk will always be looking for the chinks in my armor, for the mistakes I’ve made in my opinion. That’s what clerks are for — to make sure I don’t make mistakes.

And what’s true for he and his clerks is also true for the court as a whole. Writing about his loss, friend and fellow Justice Ruth Bader Ginsburg had this tribute:

When I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the ‘applesauce’ and ‘argle bargle’ — and gave me just what I needed to strengthen the majority opinion.

And at the end of the day, as Scalia told Jennifer Senior, everybody I’ve served with on the Court I’ve regarded as a friend. Some were closer than others, but I didn’t consider myself an enemy of any of them. His approach to deliberation, in other words, is a reflection of his approach to public policy: adversarial and contentious, but conscious of avoiding the uncivil mistake of confusing opposition for enmity.

The fact of the matter is that, yes, Justice Antonin Scalia is a deeply polarizing figure in our polarized political landscape. In no small part because he was so colorful and so quotable, he is for many American progressives singularly villainous. And undoubtedly in part for that same reason, he is for many American conservatives singularly heroic.

But both of those characterizations miss the point of Scalia in this regard: as much as any political ideology, his commitment seems to have been to a process by which, through ardent but respectful disagreement, we come to decisions that are as thoroughly examined – and as well made – as they can possibly be.

His civility wasn’t the sort that manifested as politeness. But for all his penchant for provocation, we may be able to learn a thing or two about civility from Antonin Scalia.

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