On the Passing of Justice Scalia

Portrait of Justice Scalia
Antonin Scalia possessed a muscular mind, a brilliant style, and, from what I can tell at a distance through his opinions and the news media, a fearsomely big personality. But especially in the last few years he deployed those qualities to code and conceal a retrograde morality with a brittle legal philosophy. The disjunctions revealed in that maneuver were stunning. As he insisted more and more fervently that his views were rooted in reason and principle, the cogency of his reason gave way to embarrassing outbursts of emotion, and the inconsistency of his principles betrayed the troublesome ideology that animated his work.

I am skeptical that the Supreme Court of the United States is a purely legal or purely political institution. As a constitutional court, it stands the uncertain ground between the two and mediates, much as the Legislature occupies its own liminal zone and mediates between war and politics. But while it is relatively easy to understand how the mediation of war and politics, or the sublimation of war into politics, might produce law, it is difficult to understand that the mediation of law and politics by a constitutional court can also produce more law. Maybe that is a moral mystery, or maybe it is just a misnomer. Either way, the justices are political persons—a unique, platypus-like species of the political genus, but political persons nonetheless—whether Antonin Scalia believed it or not.

And that means the deaths of these unique political persons are not just biological, familial, and social events, but political ones, too.

The death of Antonin Scalia is distinct from the passing of Justice Scalia. Mourn the death of the man and feel sorrow for those around him. (And I am sure the sorrowful include his fellow Justice, Ruth Bader Ginsburg, who could hardly be more different, politically.) But I cannot begrudge anyone exulting the passing of the Justice, because the political consequences of that event are real, and belong to us all.

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