Justice Scalia: American Nietzsche

This is Part 2 of my series on Justice Scalia, Diva of Disdain.  Part 1 is here; an introduction to the whole is here.

Like many originalists, Scalia claims that his jurisprudence has nothing to do with his conservatism. “I try mightily to prevent my religious views or my political views or my philosophical views from affecting my interpretation of the laws.” Yet he has also said that he learned from his teachers at Georgetown never to “separate your religious life from your intellectual life. They’re not separate.” Only months before Ronald Reagan nominated him to the Supreme Court in 1986, he admitted that his legal views were “inevitably affected by moral and theological perceptions.”

And, indeed, in the deep grammar of his opinions lies a conservatism that, if it has little to do with advancing the immediate interests of the Republican Party, has even less to do with averting the threats of judicial tyranny and judicial anarchy. It is a conservatism that would have been recognizable to Social Darwinists of the late nineteenth century, that mixes freely of the premodern and the postmodern, the archaic and the advanced. It is not to be found in the obvious places—Scalia’s opinions about abortion, say, or gay rights—but in a dissenting opinion about that most un-Scaliaesque of places, the golf course.

Casey Martin was a champion golfer (he’s now an ex-golfer) who because of a degenerative disease could no longer walk the eighteen holes of a golf course. After the PGA Tour refused his request to use a golf cart in the final round of one of its qualifying tournaments, a federal court issued an injunction, based on the Americans with Disabilities Act (ADA), allowing Martin to use a cart.

Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

By the time the case reached the Supreme Court in 2001, the legal questions had boiled down to these: Is Martin entitled to the protections of Title III of the ADA? Would allowing Martin to use a cart “fundamentally alter the nature” of the game? Ruling 7–2 in Martin’s favor—with Scalia and Thomas in dissent—the Court said yes to the first and no to the second.

In answering the first question, the Court had to contend with the PGA’s claims that it was operating a “place of exhibition or entertainment” rather than a public accommodation, that only a customer of that entertainment qualified for Title III protections, and that Martin was not a customer but a provider of entertainment. The Court was skeptical of the first two claims. But even if they were true, the Court said, Martin would still be protected by Title III because he was in fact a customer of the PGA: he and the other contestants had to pay $3,000 to try out for the tournament. Some customers paid to watch the tournament, others to compete in it. The PGA could not discriminate against either.

Scalia was incensed. It “seems to me quite incredible,” he began, that the majority would treat Martin as a “‘custome[r]’ of ‘competition’” rather than as a competitor. The PGA sold entertainment, the public paid for it, the golfers provided it; the qualifying rounds were their application for hire. Martin was no more a customer than is an actor who shows up for an open casting call. He was an employee, or potential employee, whose proper recourse, if he had any, was not Title III of the ADA, which covered public accommodations, but Title I, which covered employment. But Martin wouldn’t have that recourse, admitted Scalia, because he was essentially an independent contractor, a category of employee not covered by the ADA. Martin would thus wind up in a legal no man’s land, without any protection from the law.

In the majority’s suggestion that Martin was a customer rather than a competitor, Scalia saw something worse than a wrongly decided opinion. He saw a threat to the status of athletes everywhere, whose talent and excellence would be smothered by the bosomy embrace of the Court, and also a threat to the idea of competition more generally. It was as if the Homeric rivals of ancient Greece were being plucked from their manly games and forced to walk the aisles of a modern boutique.

Games hold a special valence for Scalia: they are the space where inequality rules. “The very nature of competitive sport is the measurement,” he says, “of unevenly distributed excellence.” That inequality is what “determines the winners and losers.” In the noonday sun of competition, we cannot hide our superiority or inferiority, our excellence or inadequacy. Games make our unequal natures plain to the world; they celebrate “the uneven distribution of God-given gifts.”

In the Court’s transposition of competitor into customer, Scalia saw the forced entry of democracy (a “revolution,” actually) into this antique preserve. With “Animal Farm determination”—yes, Scalia goes there—the Court had destroyed our one and only opportunity to see how unequal we truly are, how unfairly God has chosen to bestow his blessings upon us. “The year was 2001,” reads the last sentence of Scalia’s dissent, “and ‘everybody was finally equal.’”

Like the Social Darwinists and Nietzsche, Scalia is too much a modernist, even a postmodernist, to pine for the lost world of feudal fixities. Modernity has seen too much flux to sustain a belief in hereditary status. The watermarks of privilege and privation are no longer visible to the naked eye; they must be identified, again and again, through struggle and contest. Hence the appeal of the game. In sports, unlike law, every day is a new day. Every competition is a fresh opportunity for mixing it up, for throwing our established hierarchies into anarchic relief and allowing a new face of supremacy or abjection to emerge. It thus offers the perfect marriage of the feudal and the fallible, the unequal and the unsettled.

To answer the second question—does riding in a golf cart “fundamentally alter the nature” of golf—the majority undertook a thorough history of the rules of golf. It then formulated a two-part test for determining whether riding in a cart would change the nature of golf. The dutifulness and care, the seriousness with which the majority took its task, both amused and annoyed Scalia.

It has been rendered the solemn duty of the Supreme Court of the United States . . . to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

Scalia is clearly enjoying himself here, but his mirth is a little mystifying. The ADA defines discrimination as

a failure to make reasonable modifications in the policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations that the entity provides.

Any determination of discrimination requires a prior determination about whether the “reasonable modification” would “fundamentally alter the nature” of the good in question. The language of the statute, in other words, compels the Court to inquire into and decide What is Golf.

But Scalia won’t have any of it. Refusing to be bound by the text, he prefers to meditate on the futility and fatuity of the Court’s inquiry. In seeking to discover the essence of golf, the Court is looking for something that does not exist. “To say that something is ‘essential,’” he writes, “is ordinarily to say that it is necessary to the achievement of a certain object.” But games “have no object except amusement.” Lacking an object, they have no essence. It’s thus impossible to say whether a rule is essential. “All are arbitrary,” he writes of the rules, “none is essential.” What makes a rule a rule is either tradition or, “in more modern times,” the edict of an authoritative body like the PGA.

In an unguarded moment, Scalia entertains the possibility of there being “some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game.” But he quickly pulls back from his foray into essentialism. No Plato for him; he’s with Nietzsche all the way.

It is difficult to reconcile this almost Rortyesque hostility to the idea of golf’s essence with Scalia’s earlier statements about “the very nature of competitive sport” being the revelation of divinely ordained inequalities. (It’s also difficult to reconcile Scalia’s indifference to the language of the statute with his textualism, but that’s another matter.) Left unresolved, however, the contradiction reveals the twin poles of Scalia’s faith: a belief in rules as arbitrary impositions of power—reflecting nothing (not even the will or standing of their makers) but the flat surface of their locutionary meaning—to which we must nevertheless submit; and a belief in rules, zealously enforced, as the divining rod of our ineradicable inequality. Those who make it past these blank and barren gods are winners; everyone else is a loser.

Tomorrow: How and why Scalia is the real affirmative action baby, and how liberals enable him.


  1. Paul H. Rosenberg June 27, 2012 at 10:32 am | #

    My only objection to this analysis is that it makes Scalia sound too smart or too serious. He reminds me most fundamentally of a high school show-off, who knows deep down that he’s faking it–and has convinced himself that everyone else is faking it, too. “Deep down” in such cases is all of two inches.

    The opinion discussed here is a perfect example. Sophomore year in college is supposed to be the last hurrah for this sort of thinking. Hence, “sophomoric thinking”. Scalia’s dressed it up to look more sophisticated, naturally. But none should be fooled simply because he is.

    • Hampus June 27, 2012 at 12:09 pm | #

      Well, I might thoroughly dislike Scalia, but he IS smart. Reducing his demeanor to high-school show-off might be an entertaining quip, but it’s a cop-out. If you’ve studied Scalia’s dissents and career one know that he’s not a dull knife, he knows his stuff, and he knows what he’s here to do.

      • Bill Stouffer June 27, 2012 at 1:35 pm | #

        The quotes here do certainly qualify as sophomoric reasoning. In any case, Scalia is no philosopher, hence the comparison to Nietzsche in the title seems wrong. And in terms of echoes, he sounds more more like Rand than Nietzsche.

      • Expat June 27, 2012 at 2:42 pm | #

        Have you read his writings? Smart? That is one of the tropes used by liberals to excuse their laziness regarding Scaly’s writings. He lies, he’s dishonest, and he misrepresents — and that’s in his opinions. The only reason why his intelligence hasn’t been questioned is because the other losers we allow on the Supreme Court are happy enough with result and apparently could not care less about having a dishonest liar adding to the body of Constitutional law. Garbage in, garbage out. He’s stooopid! He can’t make a legitimate legal argument nor can he write decently so he creates new ground in which to rationalize his foul temper. A dark, dark soul without a single redeeming quality and let me say again: stupid. Novelty is no substitute for intelligence. The same audiences who admire his antics would cheer at a performing bear or counting horse, too.

    • Cay Borduin June 30, 2012 at 9:27 pm | #

      I had similar thoughts about Scalia’s intellectual depth while reading this. (Okay, everything I have read about Scalia makes me suspicious of his intellectual depth.) He seems to be responding to his gut just like George W. Bush did while gussying his conclusions in articulate sneering instead of inarticulate sneering.

      • jonnybutter July 1, 2012 at 9:13 am | #

        He lies, he’s dishonest, and he misrepresents — and that’s in his opinions.

        And this makes him stupid? It’s but one of the things which makes him an asshole for sure, but stupid? This formulation implies that there is a normative standard for intelligent basic human convictions everyone can agree on, which clearly there isn’t, since we have people like Nino around. I think if you want to make a rhetorical case against Scalia, in addition to calling him a liar (which he is), you can call him a fool. LIkewise, I would call Nietzsche himself a gigantic fool in some senses, but certainly not someone lacking in intelligence. His foolishness is in proportion to his intelligence, i.e. it takes someone with a lot of intelligence – a lot of ability to rationalize – to be as big a fool as that.

        Scalia lies and misleads and bullies – and thereby gets his (political) way. Is that stupid? I like Corey’s tack – ridicule him as a clown and a fool. But let’s not pretend that he lacks native intelligence – alas, he doesn’t. Now Kennedy

  2. Roland Haertl June 27, 2012 at 12:30 pm | #

    Casey Martin played in this year’s Masters. He is not an “Ex-Golfer”. He also is golf coach at the U of Oregon.

    • Corey Robin June 27, 2012 at 1:37 pm | #

      Thanks for this, Roland! When I revised the piece for publication in the book, I couldn’t find any mention of his golfing (and in fact thought I saw mention of him having retired in that capacity), though I did see the coach business. But I’m glad to know he’s still at it. And thanks much for the correction!

  3. Rory Cobbin June 27, 2012 at 2:01 pm | #

    Good gawd almighty. “Professor” Corey Robin, deified by his own ego and strangely tolerated by the foolish young minds who endure his boring lectures, picks yet another easy target who is sure to inflame partisan ire.

    I do wonder this: If Robin is so brilliant, why does he insist we are limited only to Progressives vs Reactionaries?

    Most of the human beings I have known in my 51 years have not been solely one ideology or another, but instead are composites and have values which span the map of possible choices. Yet here is Robin trying to tell everyone at his blog that you’re either anti-reactionary (read: Good Like Corey, godlike Corey!) or reactionary. No wiggle room.

    Obviously Tony S is reactionary in the Robin Worldview. Maybe many would agree, if we sought to describe things jurisprudentially rather than partisan-divisively. But to the brilliant Corey Robin, it must be dissolved to a simple question: ARE YOU A REACTIONARY?

    Good thing for Corey the term “reactionary” can be adjusted to suit any person who dares to view life and the world differently than Corey himself. It’s malleable. It’s sort of like Silly Putty that way. It’s also like Silly Putty in that you can press it onto newsprint and it becomes a mirror.

    What the mirror reflects back to Corey is something he doesn’t like. Rather than admit he’s busy cubbyholing and categorizing for the purpose of division, dismissal and possible elimination (go Stalin!), which would be existentially painful for an ego as large as Corey’s, he retrenches and finds a new reactionary to pick on.

    Does he ever wonder whether his Anti-Reactionary stance and rhetoric makes him exactly like the Reactionary he appears to despise? Narrow, rigid, and immature?

    No. He has a topcoat, a brownstone in NYC, and a meticulously crafted CV. Impossible!

    • Cade DeBois (@lifepostepic) June 27, 2012 at 9:08 pm | #

      ZOMG, he has a TOPCOAT?!?!1!

      I’m glad you were able to get all of this off your chest. Seems like it was something you’ve been carrying around for some time. What did he do? Kick your dog when you were growing up? Steal you girlfriend back when you were undergrads? Get the job you applied for after grad school? Well, whatever it is, it seems really, really personal and, whew, that must have been quite a burden. You must have been so relieved to find this blog where, in lieu of actually reading what Prof. Robin writes and making an intelligent, coherent and relevant critique, you could just go full-throttle ad hom on him while staying completely anonymous. The only thing missing from this utter cliche of Internet trolldom is a LOLcat. How could you put in this much effort into it and forget the LOLcat? Disappointing.

  4. Douglas D. Edwards June 27, 2012 at 2:05 pm | #

    Antonin Scalia is not fit to shine Friedrich Nietzsche’s shoes.

  5. JohnB June 28, 2012 at 12:50 am | #

    This superb entry on Scalia has alone made/induced/seduced? me over to Amazon with anticipation to purchase your book, “The Reactionary Mind.” Thank you for this brilliant analysis, Corey.

  6. jonnybutter June 29, 2012 at 7:54 am | #

    And in terms of echoes, [Scalia] sounds more more like Rand than Nietzsche.

    He can sound (kind of) like either. Don’t overestimate Nietzsche and don’t overestimate abstract ‘intelligence’, please. People with what we call high generic ‘intelligence’ can be astoundingly foolish/stupid. It needs to be remembered that Nietzsche, in the grand political scheme, was a reactionary (although he was not *only* that). It’s interesting that some on the left don’t notice it.

    I read Nietzsche when I was approximately a sophomore and was impressed. But later I realized that, in many cases, reading his work is like drinking champagne: it’s delicious, light, bubbly, and intoxicating while you’re drinking it. But then a little later on, you sober up a little and think, ‘OK, WAIT a minute…’.

    I think Corey’s comparison is apt, despite the fact that of course Scalia isn’t the thinker or writer than FN was.

    • Bill Stouffer June 29, 2012 at 12:00 pm | #

      I still don’t see any concrete connection between Scalia and Nietzsche, either in your comment or in Corey Robin’s original piece. Is there evidence that Scalia was influenced by Nietzsche? If it is just a matter of resemblances, then I don’t get it. Nietzsche had nothing good to say about businessmen or corporate culture, and his position on religion is to say the least nothing like Scalia’s. Of course, Nietzsche was no fan of democracy and favored an aristocratic culture, but the values of the aristocracy he envisioned and those of the people Scalia goes hunting with, for example, have little in common.

      • jonnybutter June 29, 2012 at 1:37 pm | #

        I still don’t see any concrete connection between Scalia and Nietzsche, either in your comment or in Corey Robin’s original piece.

        Not sure what a ‘concrete connection’ is here. Since they lived in different eras, there certainly is no true concrete connection. But since you don’t mean that, I don’t know what you do mean. If it’s what you’re doing, how appropriate to play ‘originalist’ games here!

        I would think that Scalia was influenced by FN, but that doesn’t mean it was a direct influence; you and I were influenced by him too, even if we never read him. To cite influence doesn’t indicate what the influence was, or why the question of it is vital.

        What is vital is the two’s general place in the fundamental political scheme Corey R is talking about in his book (and this post). My comment was also about this scheme, which is why I explicitly cited it.

        (While the two don’t have to be identical to show an apposite resemblance, I’m not even sure you can say with confidence that their views of religion are completely different. They both are fans of arbitrary power/authority. FN disliked Christianity because he thought it was a democratizing/leveling force. Do you think that describes Nino’s version of Catholicism?)

        The two are similar in that they both have a romantic/mordent view of human nature and human rationality, and therefore of politics. Hierarchy and arbitrary power are the only keys to excellence. Democracy is to be resisted or smashed, if possible – on principle. The presence of elites is not only inevitable, but indispensable. Both men are counter-revolutionaries, countering – abhorring – bottom-up political and social power.

        Now, this is a huge simplification – particularly of FN. Indeed, the particular kind and quantity of influence he had on subsequent thought might have dismayed him a little, since he was always changing his mind anyhow (so much for ‘influence’). And it’s obvious that there will be lots of superficial differences between the two men, since they do inhabit different eras. But show me a ‘concrete’ way that the above summary is wrong, essentially. I don’t see it.

  7. Bill Stouffer June 29, 2012 at 2:03 pm | #

    By concrete influence, I mean did Scalia read Nietzsche or better yet quote him approvingly. I don’t know, but I have seen no evidence here. They may well both be “reactionaries” but the claim in this piece is stronger than than just that there is a family resemblance. How does invoking Nietzsche help explain Scalia?

    • jonnybutter June 29, 2012 at 2:34 pm | #

      Why does it matter if Scalia did or didn’t read FN? ‘Family resemblance’ is vague. The only claim in the post, in fact, is the one you concede to – that they are both reactionaries in the particular, and fundamental, sense CR has laid out.

      I know it doesn’t seem fair to FN to pair him with a merely clever – and boorish – politician like Nino, but still…the comparison at hand is apt.

      My original comment was a little different. I was just pointing out that FN is not a friend in any sense to what we call the ‘Left’ (except perhaps the postmodern Left, assuming that such a thing really is Left at all), and that it’s curious that many of us don’t see it when we read him. He really is so intoxicating and thrilling to read….

  8. doloyeung June 29, 2012 at 6:16 pm | #

    The source of Scalia’s mirth is not in the least mystifying to me. In PGA v Martin you have a court that first demonstrates a spectacular inability to understand what a professional golfer is then promise to divine for us the very essence of professional golf, to finally reveal to us the pure golf that lies under the applied. He’s enjoying that the courts willingness to subvert the statute has landed it in the position of having to grapple sagely with a silly question that can only admit a silly answer. That their eagerness to act as philosopher kings necessitates that they act as philosophers of golf.

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