Affirmative Action Baby

This is last of my 3-part series on Justice Scalia, Diva of Disdain.  Part 1 is here; Part 2 is here.  The introduction is here.

In the United States, Tocqueville observed, a federal judge “must know how to understand the spirit of the age.” While the persona of a Supreme Court Justice may be “purely judicial,” his “prerogatives”—the power to strike down laws in the name of the Constitution—“are entirely political.” If he is to exercise those prerogatives effectively, he must be as culturally nimble and socially attuned as the shrewdest pol.

How then to explain the influence of Scalia? Here is a man who proudly, defiantly, proclaims his disdain for “the spirit of the age”—that is, when he is not embarrassingly ignorant of it. (When the Court voted in 2003 to overturn state laws banning gay sex, Scalia saw the country heading down a slippery slope to…masturbation.) In 1996, he told an audience of Christians that “we must pray for the courage to endure the scorn of the sophisticated world,” a world that “will not have anything to do with miracles.” We have “to be prepared to be regarded as idiots.” In a dissent from that same year, Scalia declared, “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.” As Maureen Dowd wrote, “He’s so Old School, he’s Old Testament.”

And yet, according to Elena Kagan, the newest member of the Court, appointed by Obama in 2010, Scalia “is the justice who has had the most important impact over the years on how we think and talk about the law.” John Paul Stevens, the man Kagan replaced and until his retirement the most liberal Justice on the Court, says that Scalia has “made a huge difference, some of it constructive, some of it unfortunate.” Scalia’s influence, moreover, will in all likelihood extend into the future. “He is in tune with many of the current generation of law students,” observes Ruth Bader Ginsburg, another Court liberal. Give me a law student at an impressionable age, Jean Brodie might have said, and she is mine for life.

It is not Scalia’s particular positions that have prevailed on the Court. Indeed, some of his most famous opinions—against abortion, affirmative action, and gay rights; in favor of the death penalty, prayer in school, and sex discrimination—are dissents. (With the addition of John Roberts to the Court in 2005 and Samuel Alito in 2006, however, that has begun to change.) Scalia’s hand is more evident in the way his colleagues—and other jurists, lawyers, and scholars—make their arguments.

For many years, originalism was derided by the left. As William Brennan, the Court’s liberal titan of the second half of the twentieth century, declared in 1985: “Those who would restrict claims of right to the values of 1789 specifically articulated in the Constitution turn a blind eye to social progress and eschew adaptation of overarching principles to changes of social circumstance.” Against the originalists, Brennan insisted that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Just a decade later, however, the liberal Laurence Tribe, paraphrasing the liberal Ronald Dworkin, would say, “We are all originalists now.” That’s even truer today. Where yesterday’s generation of constitutional scholars looked to philosophy—Rawls, Hart, occasionally Nozick, Marx, or Nietzsche—to interpret the Constitution, today’s looks to history, to the moment when a word or passage became part of the text and acquired its meaning. Not just on the right, but also on the left: Bruce Ackerman, Akhil Amar, and Jack Balkin are just three of the most prominent liberal originalists writing today.

Liberals on the Court have undergone a similar shift. In his Citizens United dissent, Stevens wrote a lengthy excursus on the “original understandings,” “original expectations,” and “original public meaning” of the First Amendment with regard to corporate speech. Opening his discussion with a dutiful sigh of obligation— “Let us start from the beginning”—Stevens felt compelled by Scalia, whose voice and name were present throughout, to demonstrate that his position was consistent with the original meaning of freedom of speech.

Other scholars and jurists have helped bring about this shift, but it is Scalia who has kept the flame at the highest reaches of the law. Not by tact or diplomacy. Scalia is often a pig, mocking his colleagues’ intelligence and questioning their integrity. Sandra Day O’Connor, who sat on the Court from 1981 to 2006, was a frequent object of his ridicule and scorn. Scalia characterized one of her arguments as “devoid of content.” Another, he wrote, “cannot be taken seriously.” Whenever he is asked about his role in Bush v. Gore (2000), which put George W. Bush in the White House through a questionable mode of reasoning, he sneers, “Get over it!” Nor, contrary to his camp followers, has Scalia dominated the Court by force of his intelligence. (“How bright is he?” exhales one representative admirer.) On a Court where everyone is a graduate of Harvard, Yale, or Princeton, and Ivy League professors sit on either side of the bench, there are plenty of brains to go around.

Several other factors explain Scalia’s dominance of the Court. For starters, Scalia has the advantage of a straightforward philosophy and nifty method. While he and his army march through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains “confused and uncertain,” in the words of Yale law professors Robert Post and Reva Siegel, “unable to advance any robust theory of constitutional interpretation” of its own. In an age when the left lacks certainty and will, Scalia’s self-confidence can be a potent and intoxicating force.

Second, there’s an elective affinity, even a tight fit, between the originalism of duresse oblige and Scalia’s idea of the game. And that is Scalia’s vision of what the good life entails: a daily and arduous struggle, where the only surety, if we leave things well enough alone, is that the strong shall win and the weak shall lose. Scalia, it turns out, is not nearly the iconoclast he thinks he is. Far from telling “people what they don’t like to hear,” as he claims, he tells the power elite exactly what they want to hear, that they are superior and that they have a seat at the table because they are superior. Tocqueville, it seems, was right after all. It is not the alienness but the appositeness of Justice Scalia, the way he reflects rather than refracts the spirit of the age, that explains, at least in part, his influence.

But there may be one additional, albeit small and personal, reason for Scalia’s outsized presence in our Constitutional firmament. And that is the patience and forbearance, the general decency and good manners, his liberal colleagues show him. While he rants and raves, smashing guitars and dive-bombing his enemies, they tend to respond with an indulgent shrug, a “that’s just Nino,” as O’Connor was wont to say.

The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

Ever since the 1960s, it has been a commonplace of our political culture that liberal niceties depend upon conservative not-so-niceties. A dinner party on the Upper West Side requires a police force that doesn’t know from Miranda, the First Amendment a military that doesn’t know from Geneva. That, of course, is the conceit of 24 (not to mention a great many other Hollywood productions like A Few Good Men ). But that formulation may have it exactly backward: without his more liberal colleagues indulging and protecting him, Scalia—like Jack Bauer—would have a much more difficult time. The conservatism of duresse oblige depends upon the liberalism of noblesse oblige, not the other way around. That is the real meaning of Justice Scalia.


  1. Paul H. Rosenberg June 28, 2012 at 9:40 am | #

    Some really key points here. The concluding one–“The conservatism of duresse oblige depends upon the liberalism of noblesse oblige, not the other way around”–reminds us how much conservatism is akin to flat-out sociopathy. No surprise, really.

    The preceding descriptions of Scalia’s behavior are quite similar to those of a sociopath. And, indeed, one of the key characteristics of sociopathy is the lack of capacity to feel ordinary things (the spirit of the age in all its particulars?), which is related to their utter lack of conscience–with the result that only extreme sensations register, generally leading to extreme, disruptive or predatory behavior. For the sociopath, it’s entirely realistic to say that relentless competition is the essence of human nature–it’s just that sociopaths most assuredly are NOT human like the rest of us. But, in lacking a conscience, one key thing they lack is the capacity to recognize this.

    • Donald Pruden a/k/a The Enemy Combatant June 28, 2012 at 10:22 am | #

      What Mr. Rosenberg notes opens onto the question as to why modern conservatives tend to so easily to anger, and that such anger tends to register in the political as hostility towards others.

    • Benedict@Large June 28, 2012 at 1:03 pm | #

      I disagree on Scalia being a sociopath. As you noted, sociopathy is characterized by a lack of empathy. This does not describe Scalia. He feels other’s pains; he merely relishes them.

      Scalia is a theologically-driven masochist.

  2. Expat June 28, 2012 at 1:20 pm | #

    The world would have been a better place without Scalia. The question is, is he a structural problem reflecting the stupidity of our present system — that is, if Reagan and his ilk hadn’t put him on the court some other stupid arrogant sadist would be heating up the same chair — or is he sui generis? Given the complete collapse of all living systems on our planet and the destruction of all of the human institutions that could have helped us deal with our problems, I suspect the former. Although it would give me great satisfaction if Scaly had to pay for his sins in the most ignominious manner possible.

  3. Simon June 28, 2012 at 1:22 pm | #

    Is this a joke:”reminds us how much conservatism is akin to flat-out sociopathy’

    The only thing that looks to me like socipathy is the kind of “othering” that your engaging in right now, and I say that as a proud member of the left. Absolutely disgusting. I happen to have several conservative friends and they are devoted family members, church goers, and who are intimately involved in their community. Get off your holy horse.

    • Simon June 28, 2012 at 1:24 pm | #

      PS Corey. Why are you posting things that are already in your book?

    • Sam Holloway June 28, 2012 at 2:42 pm | #

      “I happen to have several conservative friends and they are devoted family members, church goers, and who are intimately involved in their community.”
      Do you ever challenge your conservative friends about the impact of their political behavior?

      • Simon June 28, 2012 at 3:49 pm | #

        (Reposted) I do. How does that have anything to do with my objection to Paul’s dehumanization of people he disagrees with? I don’t think my conservative friends are evil because they think the HHS Mandate is wrong or that High Deductible Health Savings Accounts are better than universal coverage. They’re certainly not sociopaths.

    • Donald Pruden a/k/a The Enemy Combatant July 3, 2012 at 12:05 pm | #

      Frankly, I am sick to death of “our side” having to play as the nice liberals in defense of people who would string my Black ass up from the branch of the nearest tree if it were not illegal, and if doing so did not look so bad. Mr. Rosenberg’s statement is not a “dehumanization” of people he disagrees with – it is a diagnosis of a political strain the effects of which are pain, misery, suffering and death for politically vulnerable people (the poor, persons of color, women, homosexuals, illegal immigrants, the unemployed, the sick, people in other countries who are also desperately poor… need I go on?!). To learn about such “sociopathic” types, I recommend some reading: “Republican Gomorrah”; “Male Fantasies”, vols. I and II; “The Wrecking Crew: How Conservatives Rule” – read especially the chapters covering South Africa, Saipan, and Jonas Savimbi; and, of course, “Mein Kampf”.

      Conservatism today is crazy, dangerous, arrogant, and profoundly – globally – violent. That conservatism has occupied the continued attention of progressive writers and scholars in recent years is not merely because of its, conservatism’s, persistent political successes. Nor is it a preoccupation with theatrically and intellectually eccentric types such as Justice Scalia. Rather, as I would humbly suggest, it is mostly because we have been saddled with two insane wars, based upon lies, by the previous administration. Had it not been for those wars, GW Bush would have been just another Republican President, dismissed by progressives as just another plutocrats’ puppet (like nearly all other presidents – including the one in office now) all of its other disasters, including its horrific non-response to Hurricane Katrina, notwithstanding.

      But we live in times where a new species of conservative sway, unleashed by an unrestrained Dubya, has vomited upon the rest of the American people a dissolving acid of rancor that makes rational conversation with conservatives nearly impossible. The right’s dismay at Dubya’s departure form the Oval Office, and the failure of McCain/Palin’s efforts to succeed him, followed by a (brief) mis-blaming of the economic meltdown on Black home mortgage buyers, and the biggest insult of all: a Black man who also happens to be a Democrat having been elected President of the United States – all of this, and not just so-called Obamacare twisting and writhing its way through Congress – led to the Tea Party as a crystallization of angrily rightist impulses needing a visible outlet, while pretending to be a movement about fiscal responsibility. And all of it on corporate America’s dime.

      It is from them that one is met with a withering assault of invective, laced with assertions composed of demonstrable falsehoods (they believe global warming is a hoax and that weapons of mass destruction have been found in Iraq) about the world we live in. Plus, they got their own tv network, and it re-arms them with ever more delusions with which to shout down those with whom they disagree. And WE are supposed to be nice to THEM?! How many kicks in the teeth are we supposed to endure from “Nino” and others like him, for the sake of our rep as tolerant liberals? Newsflash, people: “Nino” and Roberts are set to re-examine the Voting Rights Act next term. “Toleration” of US is not on THEIR agenda. Be afraid, be very afraid…

      So, is conservatism “Sociopathic”?

      You betcha! (*wink!*)

      • jonnybutter July 3, 2012 at 1:25 pm | #

        I’m sure Simon is crying giant shimmying orbs of tears at the ‘othering’ of conservatives going on here. I’m also absolutely positive that he really is a ‘proud member of the left’, since his comment strongly leads me to suspect that he doesn’t know what ‘the left’ actually means (he thinks it means ‘liberal’)..

        And as you know, DP, since racism and it’s legacy were completely expunged from our culture (I think it was in February of 2002), the only kind of racism we have anymore is that of people accusing conservatives of being racist! Disgusting, absolutely disgusting.

  4. Guest June 28, 2012 at 2:17 pm | #

    There is nothing redeemable in American conservatism. Liberalism is dead. We have tolerated the intolerable and ideas such as those of Scalia and other conservatives have infected almost the whole of America. In search of political funding and as a result of evil wars, especially in Vietnam, liberalism died. It was not up to fighting the good fight against conservative lies and bullying and insufficiently supportive of and over time completely opposed to the programs it once proudly hailed as their finest achievements. Flawed because of its militarism and devotion to American exceptionalism it has morphed into its alter ego, the antidemocratic neoliberalism, which with the American military, is laying waste to the world.

    I read constantly about framing, the Republican brain, and conservative morality, but I see instead that conservatism is instead the default position in human affairs, embodying selfishness, brutality, mendacity, hypocrisy, misogyny, racism, devotion to laissez faire at any cost, greed, authoritarianism, contempt for the electorate, contempt for the public sector and the common good, contempt for workers, contempt for democracy. Lakeoff, et al., Haidt, and Mooney can talk of framing, the Conservative brain, and different systems of morality and Robin can chart for us the degree to which conservatism changes to meet the challenges from below, but they miss entirely what is hiding in plain sight, that is, how clearly conservatism embodies the default positions in much of human history: sectarianism, discrimination, bigotry, misogyny, racism, violence, propaganda, war making, continual mendacity and strategies to achieve permanent political ends, including police repression and suppression of the vote.

    It is not that liberals and others were or are flawless and possessed none of these negative traits but for conservatives they are written into their DNA and the ferocity of their responses to changing political conditions is dependent on the degree to which they experience fear of change in their status. I speak of the leadership and certain sections of their base. And with capitalism, whether conservatives or liberals or nothing at all, Americans have put all their eggs into one hand basket that is quickly going to hell. The American experience has been a laboratory for instilling sociopathy in the American character. Need I add, Obama is no liberal.

  5. Simon June 28, 2012 at 3:33 pm | #

    I do. How does that have anything to do with my condemnation of Paul’s dehumanization of those he disagrees with?

  6. Sadie June 29, 2012 at 10:39 pm | #

    Simon, are you sure you want to advise someone else to get off their “holy horse?”

  7. jonnybutter June 30, 2012 at 9:08 am | #

    How does that have anything to do with my objection to Paul’s dehumanization of people he disagrees with?

    Okay, I’ll bite. Paul was talking about Scalia, not ‘people who disagree with him’. And I believe he was talking about sociopathy, which is, unfortunately, very human. If you want to find dehumanizing talk, I suggest you discuss with your conservative friends’ friends, maybe after a few drinks, people who disagree with *them*.

  8. Vistarini Chacko August 24, 2012 at 9:01 pm | #

    When I initially commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I
    get three emails with the same comment. Is there any way you can remove people from that service?


    • jonnybutter August 24, 2012 at 9:20 pm | #

      There is a button in all of the emails themselves: ‘modify subscription options’.

  9. Tim September 24, 2014 at 11:06 pm | #

    Do you have any evidence supporting the quote below?

    “Where yesterday’s generation of constitutional scholars looked to philosophy—Rawls, Hart, occasionally Nozick, Marx, or Nietzsche—to interpret the Constitution,”

    As a law student, having read many of Justice Scalia’s opinions and dissents, as well as opinions from legal giants like Posner, Holmes, Cardozo, Hand, and others, I can assure you, philosophy had little direct effect on jurisprudence. Justices, as well as treatise authors and Restatement authors rely on common law principles.

    Your writing displays a fundamental lack of knowledge and understanding about Justice Scalia, his jurisprudence, the Supreme Court, and the legal world in general.

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