My Thoughts on the Life and Death of Supreme Court Justice Antonin Scalia

By now, you are no doubt aware that Supreme Court Justice Antonin Scalia passed away unexpectedly in his sleep.  At 79 years old, in generally good health, and seemingly as sharp as ever, the news came out of nowhere.  It immediately sent ripple waves through the political establishment and most assuredly altered the direction, debate, and tone of the upcoming Presidential election.  In fact, I’d argue that, given the timing and current administration in the White House, it very well may be one of the most consequential political events of the past quarter-century.  The typical American likely has no comprehension of how much his or her life just changed.  The effects of this will be felt for generations.

Thoughts on the Death of Supreme Court Justice Antonin ScaliaThat is a different discussion for another time.  What I find interesting is the immediate, visceral reaction people are having to Justice Scalia’s death.  It demonstrates one of the reasons politics, especially in an age of mass communication, has become so divisive.  The reaction on the Republican side is to paint Scalia as some sort of paragon of virtue; a flawless saint who has passed away and whose absence now forebodes the approach of the forces of darkness.  Meanwhile, on the left, he is being demonized as a monster; individuals celebrating as if Sauron himself has fallen from power and peace will return to The Shire.

Neither is the truth.  Beware those who would convince you he was a saint or villain; who wish to oversimplify the world by shoving his legacy in a reductive framework that allows them to sort people into good or bad, this team or that team.  To paint Antonin Scalia as a conservative or a partisan is a grave injustice to both the facts and his record.  He was much more.  Sometimes for better, sometimes for worse.

He was a brilliant legal scholar.

He was an extraordinarily gifted writer.

He was an opera lover.

He was a first-generation American, the son of Italian Immigrants.  He was the first Italian American appointed to the Supreme Court.

He was a beloved man with a witty sense of humor who developed lifelong friendships that cut across religious, political, and gender lines.

Yes, it is true that, at moment and in certain areas, he was a recalcitrant, non-apologetic, and even embarrassingly gleeful bigot who used his influence to support policies that had the effect of harming, degrading, and destroying the lives of those he disliked.

Yes, there were times when he allowed his personal ideology to influence decisions in a way that were not consistent to his articulated framework of rigid originalism; when he betrayed his own best ideals to legislate from the bench.

Nevertheless, it is an indisputable fact that there were many occasions, over many decades, when he was the deciding vote standing between us, the citizens of the United States, and an over-reaching government agency or official seeking to strip us of our rights, tag us like animals, track our every movement, invade our homes, imprison us without a trial, take away our right to self-defense, limit our freedom of speech, or refuse to allow us the counsel of an attorney.

There were many times when he lost, warning us of the dangers of what the court has done, whether it be providing carte blanche approval to wealthy developers who wanted to steal land from the poor under the guise of economic revitalization or making it possible for a genetic database to be built and used against us.

Like a sentinel, he and his gavel more often than not defended the rights and values that were won through bloodshed; the rights and values for which parents, siblings, spouses, and friends died on battlefields in hellish conditions so that one day we could escape the madness of kings or the edicts of dictators.

Despite my considerable disagreements with him on certain topics, my increasing frustrating with his willingness to discard his own principles if it meant winning a specific battle as he grew older, and my steadfast condemnation of his horrific treatment of many of his fellow citizens, including me and my husband as we both suffered directly, and deeply, at his hand, on the balance, a fair reading of the record shows that his life was one of admirable service to the republic.  In the final analysis, I believe we are all richer because of it, flaws and all.  Even when he was wrong, he forced his opponents to become better; to think more clearly, to hone their arguments, to understand the theoretical foundation upon which their position was built and defend it against often well-reasoned assault.

What I Believe Justice Scalia Did Right – And How All Of Us Benefited from It

When President George W. Bush and his Defense Secretary, Donald Rumsfeld, used the military to brand American citizens “enemy combatants”, capture them, detain them, hold them without a trial, refuse to grant them access to an attorney, and deny them the other benefits of Due Process guaranteed by the 5th Amendment, Justice Scalia joined with liberal Justice Stevens in a plurality opinion dissent warning of the dangerous ground on which citizens now found themselves; that the government was claiming it had the extraordinary right to effectively imprison a citizen accused of treason but never bring them into a courtroom, never let them prove their innocence, never confront the evidence against them, all because they were declared enemies of the nation.  He condemned the mere notion, comparing it to the similar practices of English royalty, which had used such tactics making these protection guarantees by our ancestors necessary in the first place.  [You can listen to the oral arguments and hear him reading his dissent from the bench in the case, Hamdi v. Rumsfeld, here.  You can read the opinions in HTML or PDF here.]

When the government argued it had a right to use thermal imaging technology to scan an American citizen’s home in the middle of the night to try and use heat signature patterns through his walls without a warrant in an attempt to figure out if he was growing marijuana – a series of events that sounds like something out of an Orwellian plot – Justice Scalia joined with Justice Thomas and liberal Justices Breyer, Ginsburg, and Souter in a 5-4 decision, striking down the practice by declaring it an effective search under the Fourth Amendment; that prior, probable cause must be demonstrated before such an invasion could take place.  He declared that not only was there a firm line at the entrance to a person’s house that the government could not go beyond without probable cause and due process, but a bright line.  [You can listen to the oral arguments and hear him reading his majority opinion from the bench in the case, Kyllo v. United States, here.  You can read the opinions in HTML or PDF here.]

When the government argued that it had a right, without a warrant or the ability to demonstrate probable cause, to attach an anonymous GPS device to a citizen’s car for months, monitoring his every move in an attempt to gather evidence that would later be used to charge him, Justice Scalia joined with the other justices to strike down and forbid the practice saying it was an effective illegal search under the 4th Amendment.  [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, United States v. Jones, here.  You can read the opinions in HTML or PDF here.]

When the government argued that it had a right to bring drug sniffing dogs to a person’s front door without a warrant, based on nothing but an anonymous tip, and then use the dogs’ reactions as probable cause to secure a warrant for the purposes of breaking in, searching for evidence of a crime in hopes of prosecuting the homeowner, Justice Scalia and Justice Thomas joined with liberal Justices Ginsburg, Sotomayor, and Kagan, taking a proverbial 2×4 to the back of the practice, condemning it a gross abuse of power that could not be tolerated under the 4th Amendment protections against illegal search and seizure.  [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, Florida v. Jardines, here.  You can read the opinions in HTML or PDF here.]

When the government argued that it had a right to arrest a person, then, without a search warrant, rifle through his cell phone looking for photographs, emails, text messages that could provide evidence of crimes, including those unrelated to the crime for which he had been charged without prior probable cause, Justice Scalia joined with the other justices forbidding the practice by declaring that it amounted to an illegal search and seizure under the 4th Amendment.  Their command to police departments was crystal clear when they ordered them to, “Get a warrant.”  To summarize the court, the fact that many of the privacies of life now fit in in a device you can hold in your hand rather than on papers in a desk drawer at home did not change the basic protections afforded by the Constitution. [You can listen to the oral arguments and hear Justice Roberts announce the majority opinion from the bench in the case, Riley v. California, here.  You can read the opinions in HTML or PDF here.]

When the government argued that it had a right to submit evidence to a court certified by forensic experts, and not produce those forensic experts so the defendant had a chance to confront his accuser at trial and subject him or her to cross-examination in front of a judge and jury, Justice Scalia and Justice Thomas joined with liberal justices Stevens, Souter, and Ginsburg to force prosectors to reverse course, telling them it didn’t matter if it was inconvenient or increased their workload, they had an obligation to honor the 6th Amendment rights of the defendant.  [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, Melendez-Diaz v. Massachusetts, here.  You can read the opinions in HTML or PDF here.]

When the government argued that political demonstrators had no right to burn an American flag as an expression of free speech, that it had the right to criminally charge, fine, and imprison Americans who disrespected the symbol of the country because doing so offended many citizens, Justice Scalia joined with Justices Brennan, Marshall, Blackmun, and swing vote justice Kennedy to strike down laws in 48 out of 50 states because he recognized that you cannot elevate a symbol of freedom above the freedom itself.  In the opinion he joined, the Court stated, “The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone.”  [You can listen to the oral arguments in the case, Kennedy v. Texas, here.  You can read the opinions in HTML or PDF here.]

When the government prevented a defendant in a criminal trial from using the paid defense attorney of his choice, going so far as to have a Federal marshall sit between them in a courtroom to stop them from communicating, Justice Scalia sided with liberal Justices Stevens, Souter, Ginsburg, and Breyer in a 5-4 decision that guaranteed those tried with crimes had the right to select their own attorney.  [You can listen to the oral arguments and hear him deliver the majority opinion from the bench in the case, United States v. Gonzalez-Lopez, here.  You can read the opinions in HTML or PDF here.]

When the government attempted to ban the sale of video games it believed were too violent for minors to play, Justice Scalia joined with swing vote Justice Kennedy and liberal justices Ginsburg, Sotomayor, and Kagan in ruling that video games are a form of speech entitled to 1st Amendment protections; no different than books, plays, movies, and music.  [You can listen to the oral arguments and hear him deliver the majority opinion from the the bench in the case, Brown v. Entertainment Merchants Association, here.  You can read the opinions in HTML or PDF here.

When the government insisted it had a right to regulate Internet content including effectively banning nudity, pornography or otherwise offensive material that were considered indecent by community standards in an attempt to protect citizens under the age of 18 from accessing it, doing so in a way that would have made it extremely difficult for consenting adults to produce, share, or distribute the content with each other despite having a legal right to do so, Justice Scalia joined with the court in striking down the law, the Communications Decency Act of 1996, in part because he and the other justices worried that the term “indecency” wasn’t defined; a purposely vague concept that could lead to the government suppressing any materials or speech it found offensive.  [You can listen to the oral arguments in the case, Reno v. ACLU, here.  You can read the opinions in HTML or PDF here.]

When the government insisted it had the right to seize the crops of farmers without fair compensation for the purpose of artificially inflating commodity prices and stabilizing the raisin market, a clear violation of the 5th Amendment protections against such abuses, Justice Scalia joined with many of his fellow Justices to strike down the illegal theft.  I wrote about this case, Horne v. Department of Agriculture, when it happened.  It’s complicated and involves second- and third-order economic consequences but, when all is said and done despite the damage the ruling could cause to the raisin industry, I consider it a win for individual freedom.  [You can listen to the oral arguments here.  You can read the opinions in HTML or PDF here.]

On and on it goes.  When the government attempted to strip citizens of the right to bear arms, Justice Scalia consistently struck down the unconstitutional intrusions saying that if people wanted it changed, they needed to repeal the 2nd Amendment.  When anti-gay activists ran to the court begging not to have their names released to the public under fear of being harassed or losing their jobs, he told them to grow a backbone; that our founders voted in public on colored cards so everyone knew where they stood, and all but condemned them for their lack of “civil courage”, scolding them by stating that if they wanted to legislate – which is what a proposition is – especially in a way that changed the rights their neighbors, colleagues, and friends enjoyed, they had to deal with the consequences of doing something that ticked off others as it was an inextricable part of freedom of speech.

Two Cases Justice Scalia Lost That I Wish He Would Have Won

Out of all of his cases Justice Scalia heard between 1986 and 2016 when he sat on the high court, two of my favorite, which make me admire him most, involve rulings he lost.

In Maryland v. King, Justice Scalia joined with liberal Justices Ginsburg, Sotomayor, and Kagan in a 5-4 dissent.  The government had insisted that it had a right to book someone for a crime, take a DNA swab to gather their genetic information, then use that DNA record to check all other crime scenes, past, present, and potentially future, even without probable cause or a warrant.  The conservative majority agreed, establishing what I believe to be one of the most potentially catastrophic precedents in Supreme Court history.

Justice Scalia was so infuriated with the majority opinion, he read his dissent from the bench, warning his fellow citizens that, “because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason”.  The implications and dangers are clear to anyone who is a student of history; who knows how previously democratic countries can devolve into fascism and previously well-intended databases suddenly are used for genocide or political manipulation.  Scalia knew that letting off an occasional criminal who otherwise would have been caught by the unprecedented dragnet was worth the price of not subjecting us all to effectively unrestrained search by those in power.  [You can listen to the oral arguments as well as him reading his dissent from the bench here.  You can read the opinions in HTML or PDF here.]

In Kelo v. City of New London, Justice Scalia joined with the minority, which decried the use of eminent domain authority to force one private land owner to sell his or her home or property to another private landowner solely for the purpose of economic revitalization.  The idea that a corporation or rich real estate developer could come along, make a deal with local politicians, and effectively force longtime homeowners from their houses to build a new corporate headquarters, shopping mall, or casino struck him as profoundly un-American; a violation of everything that the founding fathers held dear.  In Justice O’Conner’s dissent, the losing side lamented this was merely a way for the wealthy and powerful to get whatever they wanted at the expense of their less fortunate neighbors as they now had no need to respect private property traditions, saying, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).”  [You can listen to the oral arguments here.  You can read the opinions in HTML or PDF here.]

What I Believe Justice Scalia Got Wrong – And How We Were All Harmed By It

In reviewing Justice Scalia’s record, and having watched him for nearly my entire life, I find myself coming to the same conclusion as Republican Economist, Professor, and Federal Appellate Judge Richard Posner.  Justice Scalia was far from objective and anything but impartial when it came to certain topics.  He would throw out his own ideals in a heartbeat and replace them with raw, practically unrestrained, seething contempt and prejudice whenever it suited him.  Judge Posner basically concludes that Justice Scalia’s legal framework, in many cases when it enters an area where he holds a deep, generation and cultural prejudice, amounts to theocratic majority rule.  It worked fine as long as you were a member of the dominant race, dominant religion, and dominant sexual orientation but God forbid you weren’t as the Constitution, in Scalia’s worldview, offered you no safe harbor from the abuse of your fellow citizens.

You are aware of my own experience in one of these areas as someone who was a member of a class targeted by Scalia.  I’ve shared it in the two most personal posts I’ve ever written, here and here.  Most of you know that, had Justice Scalia’s vision of America prevailed, you would not be reading this blog right now.  You would not know my name.  Anything and everything you’ve learned from my writings would not exist as I would not have wanted to draw attention to myself.  Throughout his career, he consistently worked to make life an utter, living hell for people like me, casting aside any thin veneer he had for the rule of law or constitutional principles in doing so.  People who are younger than their early thirties probably cannot fathom the damage he did and the role he played in demonizing gay people over the past three decades.  He contributed in a major, substantial way to a culture that resulted in a disproportionate amount of young men, 10, 11, 12 years old coming home from school, going to their rooms, and blowing their brains out or hanging themselves in their closet as their parents cooked dinner.  If you doubt it, go read his legacy as it pertains to civil rights.  It’s as bad in this area as men like George Wallace were on race, stepping far outside of any constitutional framework that can be supported.

One example came in a Supreme Court case called Romer v. Evans.  [You can listen to the oral arguments and majority opinion here.  You can read Scalia’s dissent in HTML or PDF here.]

Back in the 1990’s, after several communities in Colorado decided they wanted to offer basic protections to gay people – the right not be fired from a job or thrown of an apartment, for example – the religious right became enraged.  It mobilized and got a ballot initiative passed called Amendment 2, which it then planned on using as a model to replicate in other states across the country.  This particular state constitutional amendment was breathtaking in scope.  In the words of the 6-3 majority that struck it down, Amendment 2, “prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class”, before it then goes on to quote the amendment itself, which states:

“No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.”

Amendment 2 quite literally made it illegal for anyone, gay or straight, Republican or Democrat, rich or poor, male or female, young or old, to vote to offer any protections or benefits, on any level of state or local government, through any agency or branch of the government, to gay people.  Justice Kennedy, who delivered the majority opinion, expressed disbelief at the extent of the animus involved.  It’s hard not to agree with him when you go back and look at the election.  The purpose of the amendment, especially if you were around during the time it was being passed, is clearly pure, raw, untethered hatred akin to certain laws in the South that had targeted black Americans or certain laws in twentieth-century Germany targeted at religious, cultural, and/or hereditary Jews.

Justice Scalia wasn’t having it.  In his dissent, he described this extraordinary rescission of democracy which, under any other condition he would eviscerate, as, and I quote with emphasis, “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws”.  But he didn’t stop there.  Justice Scalia went so far as to say that even if a gay person were single and celibate, it would still be acceptable to deny him access to democracy simply because he was tempted to fall in love with another man.  Again, I quote so there can be no misunderstanding of how extreme his position was, “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation is an acceptable stand in for homosexual conduct.”

Seven years later, in one of the most famous cases in the history of the United States Supreme Court, Lawrence v. Texas, Justice Scalia again found himself on the losing side in a 6-3 decision, unleashing a torrent of attacks in his dissent.  [You can listen to the oral arguments and opinion being handed down from the bench here.  You can read the opinions, including Scalia’s dissent, in HTML and PDF here.]  The case involved police officers entering the private home of a gay person on an unsubstantiated tip from a neighbor who lied and claimed a black man was waiving a gun to give the cops reason walk into the residence.  The police officers discovered the man in his bedroom, engaged in sexual activity with an on-again, off-again boyfriend.  He was arrested and pled guilty to the crime of “homosexual conduct”.  The neighbor was charged with filing a false police report and pled no contest but was let out of jail in less than a month.

Scalia made known that he believed that the government had the authority to prohibit two consenting adults from engaging in a sexual act for no reason other than expressing disapproval; that even if the prohibition were irrational, it didn’t matter because the laws were justified by the fact that enough people found gay folks disgusting.  Of course we can throw them in jail.  Of course we can fine them.  Of course we can take away their rights.  If that weren’t enough, he gave some indication that he believed it was perfectly fine for the court to say that it would be unconstitutional to prevent a man and his girlfriend from having oral sex (that might be worth protecting) but if a man and his boyfriend did it, they could be criminally charged as society expressed its disdain for them because – I kid you not – it wasn’t really discriminating against gay people as gay people were treated exactly the same as straight people.  That is, if a gay man wanted to have oral sex, he could simply do it with a woman.  Problem solved in Scalia’s mind; no discrimination.  The fact that it is akin to telling a Baptist in Uzbekistan he has freedom of religion because he can read the Quran and attend mosque to worship Allah, and therefore no religious discrimination exists, seems to be lost on him.

That wasn’t enough, though.  Justice Scalia quoted his own Romer dissent, saying, “I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct”, going on about how it was abhorrent to treat people like they were bigots simply because they wanted to discriminate against people.  He feels the need to defend this point of view, because, in his own words, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”  Lest you be under the impression, he makes a point of assuring the court that he has “nothing against homosexuals”.  Had it been a generation prior, he would have been saying the same thing about segregation.

Last year, in the Obergefell v. Hodges decision that legalized marriage equality in all fifty states [listen here, read here] , Justice Scalia once again found himself on the losing side, apoplectic at his inability to stop the court from striking down the remaining marriage bans.  His dissent is as scathing as one would expect, his gift for words perversely twisted into a weapon to demean an entire group of people whom he would be perfectly willing to let die alone in the hospital, be evicted from their home, force to pay inheritance tax, be denied Social Security benefits, and 1,400+ other advantages under the law; a group of people for whom he as perfectly willing to disregard the full faith and credit clause of Constitution when one state, having passed marriage equality through its elected representatives and governor, had a married citizen who traveled through, or moved to, another state, betraying his much-loved originalism and proving once again that there was no bigger framework involved.  He expresses offense at the idea that opposition to equal rights for gays “cannot possibly be supported by anything other than ignorance or bigotry” all without ever being able to actually articulate a single example, instead repeatedly resorting to a logical fallacy called an appeal to tradition.  One can imagine him on the Court at the time of Plessy v. Ferguson [read here] defending the abhorrent decision as being common sense.  Incongruently, in interviews at the same time, he was imploring the audience not to think of him as anti-gay or homophobic; something I find interesting.

Sadly, if history is any guide, his position on this one issue will likely be one of the only things for which he is remembered despite the sentiments to the contrary by his colleagues.  Scalia’s America is one in which any member of any type of minority finds himself or herself utterly helpless against the tyranny of the majority unless somehow, someway, Antonin himself might have experienced the discrimination so he could empathize with it.  We’ve seen this pattern played out in the past.  He hurt too many people, and inflicted too much damage, along the way to have anything else stand out in the rearview mirror, especially once the current generation of older Americans has died.  If you have any doubt, look at the difference in reaction about his passing on a Twitter, which skews younger, compared to Facebook, which skews older.  Millions of people on Twitter were in jubilation at his fall off the mortal coil.

I Still Find Scalia’s Life, and a Majority of His Constitutional Legacy, Worthy of Praise

With that said, despite the direct damage he caused me and my family, and despite many other occasions on which he was less than consistent (and there were quite a few demonstrating his willingness to legislate from the bench whenever it suited his needs but it would require tens of thousands of words and back explanation – his behavior in the Bush v. Gore case was particularly abhorrent and self-serving [listen here, read here]), I cannot help but be thankful for the things he did right; for the times he stood between us, the citizens, and the government and said, “You shall not pass.”  True, his life was not perfect.  Yes, his values were sometimes unduly influenced by the cultural biases of his age, even when that caused him to be an agent of discrimination and hatred or twist around his own, past interpretations of the Constitution.  Despite that, Justice Scalia was to some extent a firewall; a protective shield that kept out a lot of bad thinking from the heart of the republic and made it stronger.  To overlook those decisions, and that good, would be both intellectual malpractice and a moral failing.  I can condemn him in the areas in which he was wrong but celebrate the areas in which he defended us, his fellow citizens.  I can be relieved that marriage equality is now more secure and worry that other protections may now be more vulnerable.

More than anything, in this moment, as I sit in a reading chair by a fireplace in my home at 3:32 a.m. on this cold winter night, my heart breaks for his wife, nine children, and twenty-eight grandchildren.  His death has no doubt left a void in their lives that will be missed far more than the space he’s left on the nation’s legal and political landscape; especially Maureen.  For 56 years, they were married.  For 56 years, they built a life together.  Aaron and I are already approaching 20 years since we first met as teenagers and when I think about the idea of waking up to a world without him in it, I can hardly breathe.  I imagine the pain she is feeling is something that never fully heals but is only endured.  That is what we, as humans, do, just as our fathers and mothers, and their fathers and mothers before them, did.  The best for which we can hope is to leave behind a record of a life well-lived; a life worthy of emulation.

In many respects, Antonin Scalia did precisely that.  Through his writings, speeches, and interviews, he made me a better thinker.  He forced me to challenge the framework from which I approached constitutional law.  He helped me discover what it is I believe and the reasons I believe it.  In doing so, he made me a better man and a better citizen.

For that, I will always be grateful.

  • difff23

    Joshua, I’m glad you said black Americans, unlike most so called intellectuals. On the other hand blacks in this country allow it and even refer to themselves as African-Americans anyway, so I don’t see them objecting to it.

  • Brendan

    Wonderfully nuanced post; identity politics is for the intellectually lazy. I think you touch on a deeper issue in current American culture where many people tend to overreact when their ideas are challenged and instead of arguing the point, they’ll argue ideology or jump right to the ad hominem…or as we’ve seen on a few college campuses, refusal to even be exposed to differing opinions, let alone debating them.

  • Ang

    From doing a quick search, it appears you had already written about this long before I thought of it: – but given it’s been more than three years, have your throughts on the “opposition party” changed in any way?

    I am surprised too that there hasn’t been a rise of a party with conservative fiscal tendencies and liberal social tendencies, but perhaps there aren’t as many “libertarian” votes aren’t there as we would like to think exist? Maybe most of the youngsters that are now growing up welcome transfer of wealth/big government as well as liberal social policies. I can readily observe the embrace of social justice for all amongst my peer group, but when it comes to fiscal policy, it always seems as if there’s either a serious apathy towards it or there’s just not enough knowledge on the subject from my peers. The second part is troubling, as these peers are lawyers, engineers, and some are even in finance/accounting.

  • David Hughes

    A wonderful writeup.

  • undercover

    I think we need term limits for our courts just like we need them for congress. Out with the old faces, in with the new on a regular basis.

    “…, instead repeatedly resorting to a logical fallacy called an appeal to tradition.”

    Yup, one of his worst was this one:

    “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.” -Scalia in 2012.

    The insanity of having to stay hidden if this guy had his way.

    No matter how great this man was I see him as genuinely evil.

    He reminds me of this Key & Peele parody:

  • This is the first article on Scalia I’ve read that is logical, rational, and honest. Every other article I’ve read veered too much into partisan mud slinging. I suppose it is harder to write honestly about polarizing figures and many writers devolve down to pandering to their readers with what they want to hear rather than the truth. This was a great read.

  • J. Dias

    Josh you wrote, “Anything and everything you’ve learned from my writings would not exist as I would not have wanted to draw attention to myself.” When I read this it occurred to me just how much I’ve learned from you by reading the entirety of your blog. Thank you for another revealing post. It’s rare to find an author who knows innate human biases so well and uses that awareness to write more objectively and honestly than most others.

  • Derek

    I had hoped and anticipated you would share your thoughts on Justice Scalia’s passing. Thank you for a rational and thoughtful article on his judicial legacy. Give given the enormous harm his opinions could have inflicted upon both you and Aaron, it’s even more impressive and remarkable to see such a balanced and honest assessment of his tenure on the Court.

    Thank you!

  • joe pierson

    Perhaps it is the current transfer of wealth to the .1% is what makes them gravitate toward the other extreme.

  • scorp2780

    Thank you for the thoughtful post. Your knowledge of the law is impressive.

    On an unrelated I read this posting today that shows how the tyranny operates in China. In light of Scalia’s fear of the governmental overreach it may interest you Joshua.

  • undercover

    Ang, why didn’t you just post that over there then? It feels so out of left field here. Plus, he gets alerted to new posts to old blog posts I believe if that’s your main concern.

    However, since you got my random attention to your question of the rise of a new party. Have you seen the new Spaceballs parody of Ross Perot?

    It takes place in a galaxy far, far away.

    It has a rather excellent movie trailer too.


    There has been a waking, have you felt it?

    Don’t Be Afraid.

    The dark side and the light.

  • I appreciate how you fight back with kindness and understanding, rather than reflexive hate, as many have been tempted to do.

  • onlyalittle

    I really enjoyed reading this post. I admire your ability to see the merits of Scalia’s legacy even though part of it involved policies that would negatively impact the lives of many people (including your family). I have to admit that I have struggled to do the same thing in my own life. Usually reminding myself that I also have some blind spots keeps me understanding about otherwise intelligent people who hold such abhorrent views.

  • dave (nestle)

    I have a real uneasy feeling with the newest order to Apple by a federal judgeregarding cellphone encryption. A most untimely loss for the court for sure. (all negatives about Scalia aside)

    • undercover

      I share your feelings of being uneasy regarding the same issue. So many people do not understand or just do not care to allow the government to force the makers of encryption to create backdoors to the encryption they leave us all worst off. The United States got is not the only game in town who wants our data.

      This about protecting everyone data in the United States.

      I heard a morning talk show host today try to shame anyone for wanting government-proof encryption as if that’s also supporting terrorism.

      What worries me greatly in the 21st century is these higher-level judges get appointed by today’s Presidents who do not give a rat’s ass about encryption as far as I can tell.

      For instance, it’s nearly all talk and lies with Obama when it comes to protecting our personal data. (The Wolf is guarding the hen house.)

      I can just picture it in my mind now some new judge gets asked what is your stance on the government being allowed access to anyone data for x reason.

      So you are all for protecting United States citizens’ data from me? Sorry, I cannot put you on the bench.

      Politicians should not be allowed to pick the very judges who are to protect us from the damn politicians.

  • FratMan

    If President Obama golfs instead of attending Justice Scalia’s funeral, would you think less of him?

    • It is neither customary nor expected for a President or Vice President to attend the funeral of a Supreme Court justice. In this case, the President has decided not to attend while the Vice President, given his personal relationship with Justice Scalia, is attending, which is more than most other Supreme Court justices throughout history have received. Furthermore, the President and his wife are paying their respects privately prior to the funeral. By all accounts available to the public, the people on the inside of Scalia’s circle are happy with this decision, saying the President made the right call. It certainly guarantees that the funeral itself will be less of a security circus so the family and friends attending, who loved him, can focus on grieving. It also serves to reduce risk. The entire Supreme Court is going to be there, many members of Congress are going to be there, the Vice President is going to be there. If something catastrophic happens, I’d prefer not to have the acting heads of all three branches of the Federal Government killed or injured at the same time.

      Given that there is no reasonable expectation he would have attended in the first place (and those who think there should be are largely displaying their ignorance of precedence or customary behavior in this situation, perhaps confused by the decision of President George W. Bush to attend a couple of funerals for Supreme Court Justices), and that the people involved seem to have no problem with this, what the President decides to do with his time off that weekend is utterly inconsequential. The idea that he should stay inside with the curtains drawn in some sort of artificial, manipulative press image to satisfy an irrational desire for meaningless symbolism strikes me absurd. I don’t care if he sleeps in, goes to work, plays Angry Birds on an iPad, golfs, or takes a cooking class. Then again, I find the ancient traditions of professional funeral wailers in Italy and throwing ashes over your head in certain Biblical cultures to be eye-roll inducing.

      That people are already politicizing the decision is yet another manifestation of what’s wrong with the culture in Washington, D.C. And it won’t stop them, either. Absent any idea of what is normal in this situation, they’re going to think President Obama is violating some sort of tradition or show of respect when nothing could be further from the truth. They have no idea that, for example, when Thurgood Marshall died, President Clinton didn’t attend. Vice President Al Gore went, instead. It’s normal in these situations. There is no justifiable outrage here at all. It’s ridiculous that it’s even a news story; manufactured offense meant to appeal to the lowest common denominator in an election year. I detest it.

      Then again, I find this whole leisure time obsession idiotic. People whine about President Obama playing golf (he plays – what – the equivalent of once out of every seven or eight days? Buffett plays more bridge than that.) They whined about President Bush going to his ranch in Texas; they whined about President Reagan taking naps. People make executive decisions in different ways. Do you know how I clear my mind when thinking about a particularly tricky balance sheet, income statement, or cash flow statement? I leave my desk and typically end up sitting outside with a cup of coffee, playing a piano, or getting away somehow. It’s my process. It makes decisions come to me better. Some of the most consequential decisions of my career and investment life happened when it looked like I wasn’t doing anything outwardly. I sat in a Burger King this evening reading Harry Potter and the Chamber of Secrets as I drank a vanilla Diet Coke but what was really on my mind was where to headquarter the asset management group given the advantages and disadvantages of different states.

      • undercover

        “President Kennon spends most of his free time thinking about music”. I gotta admit, that would be hilarious.

        The whole leisure thing is spot on btw. I know a lot of my best decisions came to me after I stopped thinking it over and started doing something else and “KAPOW!” it strikes.

        Example from earlier in my day: how to best replace missing supreme court judge slot (With no gridlock), if not also how to best replace the whole damn court all at once. Make it so the states pick the judges in a 21st century Eurovision like battle royale.

        Each state selects one judge along with “the Borda Count Voting Systems” you already talked about before and it gets done via 21st-century video conferencing among the states.

        We could end with a whole court that would be the well liked by the vast majority of the states and also at the same time be the most downright hostile court ever to take on the president or congress.

        It would take 10th amendment and strengthen it to the point our congress and president would have their butts kicked all the time.

        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

        The founders of the constitution did not have what we have today that would make so easy to do. The states can easily handle this new role.

        What happens when all nine judges come from the states:

        Federal gun laws? Dead on dead on arrival.

        Obama care? Not only no; not in this lifetime.

        NSA is doing what now? *Court goes nuclear.

        Executive powers would be a total joke as will.

        Take the upcoming court battle over Obama’s executive amnesty for millions of illegal immigrants, this would be them:

      • Roundball

        Completely random thought here. Now that almost a decade has passed since the last of the Harry Potter books, Chamber of Secrets is probably my least favorite. Can’t quite put my finger on the reason. I haven’t read anywhere as good a good fiction series since the Harry Potter books ended. One of these days I’m going to pick up the George RR Martin books and see if the y match the richness of Game of Thrones.

        • From what I’ve read thus far (I just left another comment breaking down where I am in the series), I can see that. I just ordered several different box sets on Amazon of different series based on reviews and New York Times sales figures to see if I’d be interested in reading them (I’m almost 95%+ Kindle these days but I had a moment of weakness). I haven’t read the Martin books; bought them all but lent the first one to a family member who is still reading it.

          If you come across anything interesting, let me know if you don’t mind.

          The thing I find amazing about the Potter books is how good of a storyteller Rowling is. It’s not the writing so much, the actual way the words are put together, as the fact she somehow makes you see these people in your mind; their personalities, who they are, what motivates them. I didn’t realize just how wonderful Hagrid was from the movies, for example. Or how truly, completely godawful Harry’s family was. It wasn’t comical at all; they were terrible people.

        • Joshua,

          I think you’d enjoy reading Brandon Sanderson’s books. His specialty seems to be in writing unique cultures and showing how the way people are raised in a society affects them in many different ways. My two favorite series that he has written are Mistborn and The Stormlight Archive. Stormlight is the better series, but it’s quite complex. Mistborn is usually recommended as a better introduction to his writing.

        • Joshua – just a quick recommendation if you’re enjoying the HP books: check out the Magicians trilogy by Lev Grossman, or at least the first book in the series, The Magicians.

          I think it’s become one of my favourite books of the past half-decade. The overly-simplified cliché summary is “Harry Potter for adults”, but that doesn’t quite cover it. If Harry Potter was set in a hidden university for magicians in America, where people swore, actually read books (and made great, fourth-wall-breaking sarcastic comments about Quidditch and Narnia) and the students used Google Street View, you’d be getting closer. It’s funny, intellectual, articulately written, and the plot is fantastic.

          It’s also put me onto a few things which I’d now love to check out, such as Douglas Hofstadter’s “Gödel, Escher, Bach”, which I haven’t yet read but would love to (have you read it?) Grossman wrote a short article about his thoughts on it which I think you’d really enjoy too.

          Just trying to give a recommendation of my own as thanks for the tons of recommendations I’ve indirectly picked up from you over the years! I appreciate you taking the time to write it all.

          Hope you’re well!

      • Was that your first time reading Chamber of Secrets?

        • Yep. We ended up babysitting our niece for 4 or 5 days off and on for that 7 to 10 day period and I began reading the first one to her just so she could practice hearing words. I’d never made my way through the books (though I had forgotten that I read the last book between the final two movies so I knew how it ended) but we have this beautiful hardbound collection I picked upon on a whim years ago. In the last couple of weeks during whatever free time I’ve had, I’ve read Harry Potter and the Philosopher’s Stone, Harry Potter and the Chamber of Secrets, and Harry Potter Prisoner of Azkaban. I’m on page 102 of Harry Potter and the Goblet of Fire now. Aaron’s reading through them concurrently on one of the Kindles. I wish I had read all of the books before seeing any of the movies. The books are so much better.

          The funny thing, reading them as an adult, I find myself less engaged in necessarily the story aspect of it – which is great, of course – but of the philosophical and ethical lessons that can be learned, sort of like Aesop’s Fables. I find myself reacting to behaviors and thinking about how I feel about them. A good example, though I haven’t gotten it in the text, is Hermoine’s decisions to wipe her parents’ memories of her. I don’t care what the risks were, I don’t care how much pain she thought she was saving them, without their consent, she had no right to do it. It was a profoundly immoral and evil act. She robbed something from them that was not hers to take. Or the situation with the house elves and its parallel to the free labor foundation of the Southern economy in the United States during the 19th century. Or something like Lupin’s condition. No matter how good of a person he is, no matter how unfair it is, the potentially catastrophic risks he poses to the children entrusted to Hogwart’s care makes his appointment, regardless of talent, wholly unacceptable. Sometimes, for the sake of greater society-wide fairness you must allow individual unfairness to exist.

          I’ve also spent a decent bit of time thinking about the so-called “death of the author” premise as it pertains to texts like this. J.K. Rowling has subsequently begun publishing additional backstories and character details on her Potter-universe website, Pottermore. Millions of fans across the world post videos freaking out about certain things, insisting that it is only her “head canon” and no more authoritative than their interpretations of character motivations. Which is interesting to me because there’s some sort of bias going on here … namely, if she had released these documents in physical form, cutting down trees, printing words on them with ink, binding them in the dried, tanned skin of a dead cow, and shipping them to physical stores so people have to acquire the tangible object, they wouldn’t be saying it because the stories would be part of the series. Yet, because she opts for digital distribution, somehow they think of it as “less than”. Is it that people inherently undervalue non-tangible goods regardless of utility? An evolutionary quirk from our hunter/gatherer days? What are the lessons for business and commerce?

          I also ended up diving into a study of the so-called Young Adult fiction space after discovering that an extraordinary 80% of revenue is generated by sales to adults. There are all kinds of theories about this – it’s about the story not just gratuitous violence and sex for their own sake as Americans are tired of the latter, it deals with self-identity and struggles that are timeless, etc. – but this whole, unexpected side project has made me think I should start adding fiction to my reading list, again, largely because of where it makes my wander. One thing leads to another, which leads to another and suddenly I discover some improvement to living or a lesson I can apply to the cash generating activities that serves me well. (Easily 99% of the stuff I’ve read in my life up until now has been non-fiction because I find the real world much more entertaining and fascinating but maybe it’s my age, I’m more interested in the bigger questions rather than practical applicability for practical applicability’s sake alone. The latter must be the foundation of a good life – theoretical abstractions are useless in and of themselves – but …. I don’t know. I’m rambling, again.)

          I’m going to miss the books when we’re done with them. Yesterday, Aaron and I went and ordered Toasted Butterscotch coffees at Starbucks after I finished all-day appointments and read for awhile. It’s been a nice respite in the scheduling onslaught of getting the asset management group launched.

        • lauren

          Please elaborate, or at least evaluate, “Toasted Butterscotch Coffees”??!

        • Starbucks released a limited-time Valentine’s Day Drink called Toasted Butterscotch that you could order either as a latte or a Frappuccino. It was an instant hit because people were ordering it and pretending it was Butterbeer in the Harry Potter books, leading to a bit of a viral marketing boost in sales.

          My feelings: It’s a bit bland, at least in the latte form (the Frappuccino variety seemed better). I’d order it again if I wanted something gentle and not too sweet but I still prefer my grande Vanilla Cafe Frappuccino.

          The idea is intriguing to me but – as both a customer and a shareholder – I’m convinced it can be better than what Starbucks is serving. We’re going to try and create our own versions, maybe borrowing and tweaking some ideas on Yummly as a starting template. This one (see attached picture from Yummly) looks particularly good because it uses half & half, whipped cream, caramel, unsalted butter, and sea salt flakes. I’d rather have a recipe like it – maybe 1/4th or 1/3rd the volume but incredibly, incredibly strong and rich, meant to be savored for a long time as you take sips.

          I’m hoping to get around to it sometime in the next few weeks. One of the personal projects Aaron and I are doing this year (2016) is based upon the idea/concept of “addition through subtraction” – going through our lives and identifying everything we don’t like and removing it no matter how small or minor, something we try to do every few years. We both decided that, for that reason as well as signaling theory prior to the launch of the asset management group, we were going to have slight cosmetic work done on our teeth among a checklist of dozens of other things even though they were already better than 95% of the population. I have spacers in at the moment as they are going to be attaching brackets to slightly move a couple of teeth into better alignment over a period of a few months before I get them whitened, and it makes eating anything solid painful so we were talking last night about making all of our upcoming recipes soup-based. Liquids are just easier so I imagine if I have time to post anything, that’s the direction the food and desserts will be going as that’s about all I’ll be able to enjoy for awhile. If I can find a butterscotch coffee recipe that works, it may become my go-to indulgence for the rest of winter / early spring.

          I’d kind of like to find a way to put a layer of marshmallow on top and toast it with fire so you get that slightly smoky flavor but it may not be worth the effort. Only experimentation will tell.

          In the event I stumble upon or develop the ideal recipe, I can let you know if you’d like. And, of course, if you beat me to it, feel free to send me whatever you discover!

  • Chicagoan

    On the merits I agree with this post. However, I think it needs to be said that had there been a constitutional amendment protecting Americans from discrimination based on sexual preference or conduct, Antonin Scalia would have been among the greatest defenders of gay rights on Earth. The fact that he did not read the Constitution as including that protection–specific protection based on sexual preference or conduct–does not, in my opinion, amount to evidence of bigotry or hatred.

    • What made him a bigot was his nearly unrestrained, venom-spewing, hateful desire, at nearly every turn and without the slightest provocation, to demonize, trivialize, dismiss, and criticize gay people and their supporters. This was a man who said it was perfectly okay for a “tolerant” citizen to not to want to work alongside gay people and decried his colleagues in the legal profession when they democratically passed a non-discrimination rule that simply stated attorneys had to agree not to fire someone for being gay. That’s it; that you had to judge someone by their work and their work alone, which he thought so extreme it was non-justifiable. That had nothing to do with originalism or his interpretation of the Constitution.

      Beyond that, let’s dispense with this notion that Antonin Scalia was an originalist. He wasn’t. For all the things he did right, he was an opportunist who would twist the Constitution to fit whatever he wanted, in whatever situation he wanted, regardless of the original intent of the authors. He used originalism as a crutch to point to whenever his decisions were unpopular. “Really, guys, it’s not me … it’s them. Blame the founders.”

      You mentioned the marriage cases, so let’s look at those.

      He told California Lawyer magazine recently, and I quote, “In 1868, when the 39th Congress was debating and ultimately proposing the Fourteenth Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” and talked about how it didn’t protect women, either; that the sole purpose was racial equality given the original intent so any use of it beyond that was not justified.

      Except when he feels like it, of course. Like that time back in 2000 when he couldn’t find a constitutional ground for reversing the decision of the Florida Supreme Court on how to handle its own recount in Bush v. Gore – he’s for state rights until he’s not – and suddenly the 14th amendment wasn’t about the original intent. What the liberals on the court had been saying all those years about the text being plain as day – that every citizen is entitled to be treated equally under the law – suddenly converted him and he used it to get his preferred candidate in The White House, shutting down the democratic process as it unfolded. One imagines the scene unfolding like Paul on the road to Damascus.

      Or how about Employment Division v. Smith? When two men were fired for their religious practices, Scalia wrote, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” and “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

      They just happened not to be religious beliefs he supported, right?

      Around comes Burwell v. Hobby Lobby Stores, Inc. and now, suddenly, he believes in a living constitution, again. Reconversion! Hallelujah! Even though Congress never intended to exempt Corporations from the contraception mandate, even though the text clearly defines the few entities that are exempt, it doesn’t matter because the text is alive! He’s going to legislate from the bench and throw out all of his past behavior to get his desired end result, which is a ban on a requirement to provide contraceptions.

      The guy did this all the time. He was not some impartial beacon of justice protecting a dead constitution. He had an idea of what was right or wrong and liked to put a shiny veneer on it that allowed him to feign ignorance. He ruled to achieve an end result more often than not, especially as he got older.

      Scalia’s decisions in the marriage cases were not based on originalism. If they were, he would have voted in favor of state recognition rights in the Windsor DOMA decision, which had nothing to do with marriage per se. He couldn’t bring himself to do it. Once again, he transformed into a mental gymnast. Why? You see, the reality is that Antonin Scalia didn’t believe gay people exist. I don’t mean that as a joke, I mean it literally. He didn’t think gay people were real. You cannot understand his rulings on these cases unless you understand his framework. He believed there was only “homosexual sodomy” or “homosexual conduct” and that if a person forced themselves to have sex with the opposite gender or remained celibate, they were no longer gay. It’s so stupid it sounds insane but I assure you if you look into it, it’s his actual position. That’s why he could go to places like Georgetown and say to students that gay rights were no different than rights for child molesters, rapists, heroin addicts, or murderers.

      He had his own personal reasons for insisting on this lunacy. Reasons that I’m sure had nothing do with the son that has now spent his life celibate and writing about how one can overcome his struggles with same-sex attraction by giving up all hope of companionship and remaining alone for the rest of your life, right? If it was good enough for his son, it should be good enough for everyone else.

      There is one thing about which I have little doubt: If there were a constitutional amendment that protected gay rights, and it came in conflict with anything that Scalia valued that could be even remotely supported under any other amendment, gay rights would have lost every single time. Despite my respect and admiration for him in certain areas, the man was one of the most actively homophobic people I have ever observed in my life. He was a bigot through and through. Originalism was merely a convenient excuse; a smokescreen he used whenever he felt like it.

      • Chicagoan

        I don’t mean to be trolling, and I certainly don’t want to do it with you on your own website, which I have found monumentally helpful over the years. But if I may respond, respectfully….

        As you certainly are aware, the law in many states (even post-Windsor and post-Obergfell) DOES make it OK to discriminate against gay people. This is true in housing, employment, or public accommodation. Title VII does not cover sexual orientation (except in the minds of the EEOC, and very recently at that). The primary exception to this framework is in marriage, and that’s thanks to a 5-4 decision from the Court.

        I–personally–think that type of discrimination is ridiculous, nonsensical and morally wrong, but I am not a king and those laws themselves state otherwise. So if that’s what the law actually says, a judge isn’t a bigot merely for stating it or applying it that way. The issue is with the state and federal legislatures, not the courts.

        Smith was pre-RFRA, and Hobby Lobby was post-RFRA. That law literally was passed in response to Smith. So we can’t really compare those, as the legal standards are different. In Windsor the Supremacy Clause forced DOMA to be the supreme law of the land over contrary state law provisions. That was the whole point of DOMA in the first place. The question was whether DOMA was constitutional, which many believed it was until Kennedy decided it wasn’t, with four justices disagreeing with him.

        Bush v. Gore came about because SCOTUS decided it was better to end a dispute about a statistical tie in the election rather than have months (years?) of lawsuits over a result that was basically impossible to fairly and objectively determine no matter how long it went on. Scalia noted that the election was going to be determined in court regardless, so the ultimate court just decided it. Hard cases make bad law, and the court’s decision may have prevented a constitutional crisis as the events wore on into 2001.

        Scalia’s faith holds that human sexuality has a sacred purpose, and Scalia (9 kids) certainly lived according to that ideology. That colored his worldview, no doubt. But strictly in applying the law, I do believe that even in his gay rights dissents, he was following the constitution. As evidence that he was not just an ideologue, I know of no cases where Scalia found that a state law that provided for gay rights and that did not conflict with a valid federal law should fail. There is absolutely no basis for that view anywhere in the law.

        The better result in all of this would have been recognition of gay rights, through the democratic process. That is an ugly, hard, long, infuriating process. Scalia as a citizen likely would have voted against gay rights, and I would have voted for them, even though I think Scalia was right in his Court opinions. But at least that process is better than having one guy (Kennedy, Obama, both Clintons) change his mind and suddenly find new rights that never had existed under the law and then impose that new interpretation on everyone. That is a dangerous precedent, which as your initial post described in detail, is what Scalia almost always stood against.

        Thank you for this site, for responding to my post, and allowing me to respond to yours.

        • That was a well-written response (and thank you for the kind words). And, please don’t ever feel like you have any obligation to agree with me on anything. If you think the facts are on your side, fight for them. If you convince me, I’ll change my mind.

          While we’re talking about it, perhaps I should clarify my personal beliefs on the matter, just so there’s no misunderstanding of how I feel about the topic.

          I agree with you that, were someone a strict originalist, I don’t believe that failing to prevent discrimination from the bench, in and of itself, is evidence of animus or bigotry. It may be but without other evidence, it isn’t sufficient to state conclusively.

          That is, Scalia was not a bigot solely because he ruled against marriage equality or whatnot totally in isolation. Rather, it is the preponderance of evidence that surrounds him; the preponderance of evidence that makes you surmise that, as a private citizen, he was unlikely to vote to support civil rights for gays. It’s the things he said and the way he said them.

          A quick illustration confirms this. Imagine you were a Supreme Court justice. Imagine you were an originalist. Now, imagine that, as you do in your real life right now, you support civil rights in areas like marriage and non-discrimination. In this alternate universe, there is no way that the things Scalia wrote in Romer, Lawrence, etc. could have come from your pen. The animus is simply not in you because you are not a bigot even though your ultimate vote outcome might be the same. You could have said, “I believe in equality. I believe discrimination is morally wrong. I believe it is a failure of the most basic standards of human decency and kindness to evict a person from their home, fire them from a job, or refuse to grant them access to their spouse’s death bed in a hospital solely due to prejudice. I believe that any decent person would vote to extend equal rights. That doesn’t change the fact that I also have a deep conviction that the people, through the legislature, have not, yet, enshrined these principles in the constitution and therefore I am powerless to uphold them no matter how revolting I may find this kind of oppression in economic, familial, tax, and other areas of law.”

          Therein resides the difference.

          As for originalism, as it has been defined in the culture for the past 30 or so years, I think it has its merits but it puts us too far toward the democracy side of the democratic republic structure that has led to ever-expanding civil liberties in this country. I am very, very much in the camp of founding father James Madison. He was extraordinarily nervous about the introduction of a bill of rights because he believed that nearly all rights were reserved to individuals; that, if you started adding written rights, someday, someone would come along and say, “Unless this right is in the Constitution, it isn’t inalienable.”; that the number of rights retained by individuals at the expense of the government is exponentially higher than those found in the text itself.

          That’s why Madison demanded the 9th amendment be included. He wanted it right there, in black and white, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” only those who prefer government control over private lives have used this to argue that “by the people” means “by the States” or the people collectively, something I find absurd.

          For example, imagine that Congress decides it is going to limit the right of every American to reproduce for the sake of population control; that each person can only sire one biological child. There is nothing in the Constitution to prevent such a thing if you take the view that only the things written in the Constitution are protected. However, it violates something that is beyond the government’s reach in the first place. A free, sovereign citizen has a right – endowed by nature, endowed by God, endowed by whatever you want to call it – to reproduce that nobody can take away from him; that nobody has a right to force upon him. The courts have recognized this in that they won’t even allow convicted felons to be denied conjugal visits absent extreme circumstances. I think there’s a 9th amendment argument. For the government to exercise such an authority, the reason must be extraordinarily compelling and tied directly to the desired objective in the least restrictive way.

          In the spirit of Madison’s philosophy, the fact that there isn’t a specific amendment guaranteeing the right to reproduce doesn’t matter to me because it flips the question on its head. The presumption should not be that the government had the power to take away the right in the first place. There are certain things around a person – something Justice Kennedy has called a zone of personal liberty – beyond which the government cannot go except in specific situations and for a rational reason. It involves the selection of a spouse, the decision about whether or not to reproduce, the right to self-defense, and a host of other things.

          As it pertains to the marriage equality cases, I believe there are two other ways you can get to sexual orientation discrimination protections using a textualist approach; a sort of legalistic, Pharisee-like insistence that the literal words are all that matter (very different that originalism though people sometimes mix them up when talking about Scalia). A textualist approach means you’d look at the words of the 14th amendment, the first section in particular – “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” – and interpret it literally.

          The first recognizes what the Perry cases did – that sexual orientation is a distinct class and not a behavior. If the government built a machine (the Canadian government actually did once), it could identify gay people, even against their will and protestations, very quickly due to all sorts of biological feedback that is beyond their control. It’s a bit scary, actually, because if a Hitler ever rose to power and began constructing concentration camps, again, this time around, those given the pink star and thrown in to die wouldn’t have any chance of escape. This recognition – a scientific fact that nobody who is intellectual honest can dispute – means the government must have a compelling governmental interest in specifically restricting rights for the group. Republican Judge Richard Posner’s oral evisceration of the case in front him for the 7th Circuit Court of Appeals demonstrates, argument after argument, that such a rational justification does not exist (that link is to some of the excerpts but the entire thing is worth listening to if you have the time). There is no legitimate state interest except for an appeal to tradition or arbitrary discrimination. Therefore, the power never belonged to the government in the first place. The judiciary acts as a check on the legislature and executive; a republic rather than a majority-ruled democracy. As a unique, identifiable class of people, equal protection is being violated.

          The second is sex-discrimination. Denying a marriage license to a female who wants to marry a female is doing so based entirely on the fact she has a vagina. If she had a penis, she could marry that person. This is impermissible. (Some tried to argue that since all women were treated equally, it wasn’t discrimination but, again, that is like saying everyone has freedom of religion because they are allowed to go to Mosque in a theocratic society. It’s farcical as it isn’t a legitimate option and there’s a total lack of any compelling state interest in it.)

          Chief Justice Roberts tested this theory in oral arguments at one time but nobody wants to touch it for reasons that are not exactly a secret secret – the moment the court signs onto it, there is no justification for the United States remaining one of the only major countries to discriminate against men by requiring them, and them alone, to register for a draft. The Secretary of the Army recently began talking about how the fact gender equality in the draft is inevitable – that there is no way the U.S. is going to be able to avoid it – but the court doesn’t want to make it happen at the moment. It’s coming. Not today, but it’s coming.

          All of this, though, goes back to my personal philosophy of government, rights, and the Constitution that Madison was correct. The idea that the courts might err too much on the side of expanding individual freedoms is not my idea of a tragedy. As it pertains to real-world politics, my sense of theoretical purity, as interesting as I find it, takes a backseat to the practical outcomes of stopping the tendency for concentrated power in the hands of majority-ruled elections to devolve into majority-rule tyranny; the whole Benjamin Franklin joke about democracy being two wolves and a sheep having a vote on who is for dinner.

          For example, imagine a state passed a state constitutional amendment saying that, in custody battles, a man will always lose and custody be awarded de facto to a female. I don’t even think the 14th amendment is necessary. It’s such an unthinkable violation of individual autonomy based upon an innate characteristic, such an incredible overreach of governmental power that could have never been envisioned with the Constitution was written, I’d strike it down. The only way I’ll defend it is if it is somehow added to the Federal constitution and even then, I’ll defend it on the bench but work privately to get it repealed.

          I don’t even think curfews on minor citizens who are told they must be in the presence of an adult are Constitutional as they go against a longstanding right to free roam recognized in common law long before our nation existed. I don’t think auto-ticketing traffic cams are Constitutional. I’ve made the joke before, but I mean it, if I found myself on the Supreme Court, I’d be a little bit like Andrew Jackson, banging a cane on the floor and yelling “Freedom!” in the middle of oral arguments. In as many ways as possible, I will almost always side with the individual against the government except as it pertains to necessary reset or correction mechanisms that are necessary to the overall functioning of civilization and prevent de facto institutional violations of equal protection; e.g., public accommodation laws are an acceptable restriction on the right of association by a merchant as the transaction is commercial and can fall under the commerce clause, it ensure equal access to the marketplace for disadvantaged groups, and the merchant himself or herself benefits from those same laws when on the other side of the lunch counter.

          Part of this belief in the equality of the judiciary branch (rather than Robert’s insistence it is merely an umpire calling strikes and balls) is I want as much strife, reaction, counter-reaction, and gridlock between the three as possible because that tends to lead to the better overall outcomes in a lot of cases, though it’s far from perfect. If the court goes too far and strikes things down, the people can amend the Federal constitution. Congress can pass bills that specifically strip an issue from the court’s power to review. Congress can impeach judges. The executive can appoint different judges to change the makeup of courts.

          But, no … from what I can tell, I don’t think there’s any disagreement between us that a true originalist, who was intellectually honest, could theoretically have cast his vote on the court against Obergefell and done so for reasons that were not inherently bigoted even if the effective outcome was perpetuation of bigotry. The Obergefell decision alone, though, is not why I call Scalia a bigot. I call him a bigot because he, the man, was a bigot.

  • Kandice

    I enjoyed this post, Joshua. I spent a significant amount of time in law school (obviously) reading and analyzing Supreme Court opinions and dissents, which only continued throughout my professional career. I’d be lying if I denied openly weeping after learning of his death and in response to reading/watching news reports throughout the week. I try very hard to stay away from politics on social media since people today seem much less inclined to engage in an intelligent, rational discussion of opposing viewpoints without it devolving into personal attacks. One of the things I admired most about him was that even though his analysis of the Constitution would often lead to passionate disagreements with his colleagues, he (and they) were able to distinguish between the professional and personal. I mean, one of his best friends not only on the bench and in the Court house, but also outside of it, was The Notorious RBG, one of his left leaning counterparts.

    In one of his many interviews, he responded to a question about why he wrote his opinions the way he did, using colorful words and inserting funny or sarcastic quips, etc. He did it specifically for law students who slog through 1,500 pages of case law every week. I loved reading his opinions and dissents then, and I still do.

    He gave so much in service to our country and for that alone he has earned my respect and gratitude, despite disagreeing with his rulings at times. Not only that, but he could have retired at 65 and his pension or retirement plan would have continued paying him his salary until his death. To make it plain, he gave us, the citizens and taxpayers of the United States of America, 14 years of service for free. I’d hope that no matter where one falls on the political spectrum, the magnitude of this gift to the American people would at the very least prompt an extension of thanks.

    • I understand exactly what you’re saying. I remember feeling a sense of loss that I’d never get to read one of his dissents, again. Even the ones I found misguided at least demanded a response; forced people to think or take sides on an issue. They were so well written, and he’s been serving on the high court since I was barely 4 years old, that they were something I sort of took for granted like a fact of life; an endless stream of entertainment that gave me the free benefit of challenging my thinking from time to time. Knowing there will never be another is sobering.

      Political discussions these days … this whole election … I really do think the rise of 24/7 media is responsible for it. It becomes about soundbites. Case in point: As I type this response to you, I am watching the GOP primary debate and Ted Cruz just effectively lied (it seems to be his thing) about Donald Trump saying the latter loves Planned Parenthood because it does wonderful things. The fact we live in a society where that kind of dishonesty – he knows what he was implying – is so disappointing to me. It’s an allusion to Trump saying that, aside from abortion, Planned Parenthood does wonderful things. Cruz knows they do but by keeping it ambiguous he can use a “horns and halo” mental model; that most people watching, especially in areas outside of major cities, like New York where Trump lives, don’t have experience with it so only associate it with abortion. They have no idea that they provide over half a million breast exams per year for women worried about cancer. They provide tens of thousand of HPV vaccinations for girls who can’t afford it. They give nearly half a million Pap Tests. They give more than 37,000 Colposcopy procedures. They provide over a million pregnancy tests. They give thousands of adoption referrals. They treat tens of thousands of urinary tract infections. They give almost 700,000 HIV tests per year. They provide nearly 43,000 HPV treatments per year for those who get infected. They do thousands of vasectomy procedures a year. They do much, much more than abortion-related procedures. Why is it so hard to admit that? Why can’t someone say, “I like this part of what they are doing but don’t like that part?”.

      Why do these people keep trying to score cheap points with the electorate when this isn’t something people should disagree on as it has nothing to do with abortion? My guess: Because people cannot separate individual policies from their “team”. They treat governing like a contact sport or a fantasy football league where it’s us versus them.

      At this point, I am so disappointed with the failure, once again, of the two parties to get the nomination process right that I almost want to see a 19th-century, early-America style free-for all election with Sanders running as a Green Party candidate, Hillary taking the Democratic nomination, Bloomberg running as a third-party independent, and Trump running for the GOP simply to see what happens. The problem I have is I’m a policy wonk. I care about the details – what actually works. My ideal ticket would be totally unelectable. You’d have some reasonably conservative foreign policy expert with extremely good executive skills like Huntsman running alongside a reasonably progressive, fiscally-intelligent bankruptcy and legal expert like Elizabeth Warren trying to solve the thorny stuff nobody wants to tackle; the out-of-control costs of education, the unfair taxation loopholes for the super-rich, etc.

      My presidency would be the most boring thing in the world. It’d make people yawn. There are so many things that need to be fixed but aren’t glamorous. I mean … look at vanity sizing in clothing. You walk into a grocery store anywhere in the country and a gallon of milk is a gallon of milk but in a clothing store, there is not standard measurement for “small” or “large”. Why isn’t the Bureau of Weights and Measures doing something about that? You have dentistry groups being taken over by ESOPs and putting in production quotas and bonuses for procedures done, a horrible ethical violation for the medical field and something that should be banned. Why isn’t anybody doing anything about that? You have no right to be forgotten privacy laws on Google like in Europe. Why isn’t anybody doing anything about that? We talk about family values but we don’t value the family at all in this country – we’re practically the only civilized first world nation that doesn’t offer at least 4 weeks of paid vacation and several months of paid maternity or paternity leave for new parents (despite his economically unworkable proposals, to his credit and despite my disagreements with him, Sanders is at least pushing this home – he talked about it in a speech he gave at conservative Liberty University). We allow nearly every other type of nonsecured debt to be discharged in bankruptcy – you can go on vacation on a credit card and get it forgiven – but not student loan debt, an entirely new thing this past decade or so. Why isn’t anyone doing anything about that? You have credit history being used to discriminate against people in job hiring, creating negative cycles that perpetuate poverty. Why isn’t anyone doing anything about that? Why should your employer know your personal finances absent a handful of specific, relevant jobs? On and on it goes … we have far too low standards for what is called “cheese” or “ice cream” in the United States compared to Europe.

      I don’t know. I have a bunch of work to get done but I may go read for awhile or watch the rest of the debate on the couch …

      • joe pierson

        > You have dentistry groups being taken over by ESOPs and putting in production quotas and bonuses for procedures done, a horrible ethical violation for the medical field and something that should be banned.

        Isn’t the entire medical service industry organized as cost-plus system?

        • Imagine two scenarios. You have two dentists. It is true that both earn more money the more procedures they do but the incentive systems, and pressures (both positive and negative), are very different so it’s a matter of the lesser-of-two evils.

          Dentist 1: Owns his own practice. While he’ll make more the more procedures he does, he is ultimately accountable to himself, as an entrepreneur, and can make trade-off decisions based upon his own ethical values; e.g., taking the cost-benefit calculation into account for a poorer, working class family, all of the members of which he treats. The only incentive to over-service is his own avarice which most people have a decent, natural limit to under most circumstances. Sure, you get a bad apple every once in awhile but overall, people want to be fair.

          Dentist 2: Affiliates with a large ESOP-backed marketing group that is funded mostly from junk bonds that provides the dentist with an office and equipment. The ESOP, effectively, has the power to fire him if he doesn’t meet the expected numbers. Even worse, once he qualifies and buys into the system so six-figures of his net worth are tied up in a multi-year scheme that takes away all of his leverage should he desire to fight management over something he considers and ethical violation, he’s tied by golden handcuffs to the potential detriment of his patients. Managers, rather than the dentist, now have both a stick and a carrot (more marketing support, tiered rates based on procedures done, access to lower cost financing for state-of-the-art equipment) to use against him, all with one end-goal in mind: “Get the numbers up” each and every month. Cross-sell cosmetic procedures. Do Wisdom tooth extractions in-house rather than outsourcing to a surgeon.

          If you take a good person with decent morals and a desire to serve and put them in both situations, they are going to behave much worse in the second setup than they would the first, often justifying and rationalizing their behavior to the point they may even convince themselves they are helping. It becomes very, very difficult to withstand that kind of constant negative/positive pressure, especially when it’s putting you in a new BMW, wiping out your student loans, and funding your retirement plan.

          To make it worse, advances in technology, which should result in less treatment as monitoring is now easier, are actually resulting in more treatment due to these incentives and action-bias. The New York Times recently wrote a story about this back in 2011.

          Several years ago, I looked into whether it made sense to find a way around some of the restrictions to back dental practices and ended up coming to the conclusion that it was immoral and not something I want to participate in for the same reason I don’t want to back for-profit prisons or for-profit four-year universities. With the exception of lending capital in the form of amortizing loans, bonds, or vendor financing, non-practitioners of medicine should not be permitted, under any decently regulated capitalistic system, to participate in the equity earnings of a medical practice or you open the door to tremendous ethical and moral violations. This also has the practical effect of resulting in less availability of equity capital for medical practices which, for the good operators, results in lower capitalization rates, and therefore higher returns, for doctors and medical specialists, whom I think deserve the richer payouts for serving society.

          Of course, you can get into second and third-order arguments – e.g., I own Colgate-Palmolive and, as a result, am benefiting from those terrible incentives from the bad players in the industry as they provide dental supplies to everyone – but there comes a point beyond which it becomes impossible to refuse to participate unless you want to live in an isolated cabin that is entirely self-sufficient.

          There also seems to be an age difference here. When I was doing my due-diligence on it and questioning everyone I could, ranging from a retired professor at a major dental school to specialists, people older than 40 or 50 tended to be very against this new money-focused sales-production model of dentistry whereas some of the younger, successful dentists just out of school were all gung-ho for it given the lifestyle it had provided them as opposed to having to build their practice entirely from scratch without assistance.

          I don’t know, the whole thing makes me extraordinarily uncomfortable. I don’t like the idea of unnecessary or should-be optional medical procedures being billed to the patient or their insurance company as if they are a necessity. I still haven’t worked out my feelings on The Gilead quasi-conspiracy theory I shared a couple of years ago, which is finally coming to fruition. In that case, I had family members acquire shares and profit from it so I haven’t settled the line within myself as to what I consider too far. It’s something I think about a lot.

          This isn’t a particularly well-written response, I apologize. I’m kind of thinking outloud to myself.

        • joe pierson

          Interesting, I suppose this is true for primary-care practices (private equity firms buying up private practices), any way I can discreetly find out if my local doctors/dentists are structured this way? They are always trying to up sale me with various cosmetic procedures.

        • There’s not any particularly easy, uniform way to do it that I’m aware (maybe someone else in the profession who happens across this has some ideas?) but I start by looking at the particular licensed person’s information and finding everything I can about them. Most of the time, there’s a trail somewhere that leads you to their structure. Most of these deals are setup as revenue sharing affiliates so technically the dentist still owns the practice but you have all of the bad incentives we were discussing. There are 5 or 6 firms that, if they come up, cause my eyebrows to go up.

          It’s one of those things that I find really interesting and have been watching for awhile. A few dental students at Columbia University’s College of Dental Medicine put together a PowerPoint Presentation in PDF that I came across earlier, which you can read here. It does a good job of providing an overview of the landscape as it pertains to the dental field in particular. The Attorney General of various states also have certain agreements that are worth reading [PDF] to better understand what is happening. And there are a lot of settlements. In a lot of states. You get some interesting insights into the nature of the arrangements that way.

          I wish I could be more help but the answer is: Dig. Start with the specific person and research them. Then look at the professional corporation listed on the records – real estate, licensing, whatever. You’ll uncover it before long in many cases. Once you find the name of the management company with which they are affiliated, you’ll get a much better idea of what is happening. There are also certain other warning signs that, alone aren’t a big deal but if all of them are present, the odds are good you’re dealing with one. If they send on $60 flyers to get your teeth cleaned and X-Rays during a first visit; if they ask whether you want information on a whiter smile or straighter teeth on your patient information form and it reads like an infomercial; if they are located right next to an upscale shopping center or strip rather than near other medical professionals or a town square; if the equipment is all brand new, the practice is new, and dentist is less than 35 years old; you get the idea.

          If the topic interests you, check out the 1,500 page report put together for the U.S. Senate in which it is recommended these types of chains are banned from Medicaid participation because of the abuses. They just lead to terrible, terrible behavior compared to their old-fashion counterparts. It’s 143 megabytes but you’ll see why they are so controversial. Here’s a direct link to it in PDF.

          Also, I’m not saying all dentists who participate in these networks are bad. There are probably many great, high-quality professionals who are able to resist the temptations and would fiercely defend the agreements; great people with whom you’d want to be friends and who have integrity. But the whole thing doesn’t sit right with me. Structurally, it’s bad for the civilization and causes otherwise good people to do less-than-honorable things.

          There’s also something more that I find difficult to put into words. Certain professions – doctors, dentists, etc. – are more than just commercial activities. It’s not just about the money and success shouldn’t be measured solely on the basis of revenue or productivity. There’s a nobility to it that isn’t present in other professions that make it worthy of respect. I don’t like the idea of a newly minted dentist effectively becoming a glorified employee of a private equity fund. It seems wrong on some level. Nothing should interfere with the medical professional’s decision-making other than what is best for the patient given all of the relevant circumstances.

          But for real … look into that Senate report from the earlier link. Some of the Exhibits include the actual profitability arrangements / legal agreements / etc. It’s a glimpse behind the curtain and riveting reading if you enjoy that kind of thing like I do.

    • I always preferred reading the Thomas opinions.

      Which is probably why I’m not a lawyer.

  • Hexar

    Joshua, I wanted to know what are your thoughts on the current presidential election and which candidate’s platform do you find yourself liking the most?

  • Froot Loops

    This PBS series was brought to my attention recently and Antonin Scalia is featured in several of the panels. My wife and I have watched and thoroughly enjoyed almost all of them. It’s remarkably refreshing to hear these public figures speak candidly about these issues. It’s something I don’t think we’ll likely see in the future as it seems people now feel the risks outweigh any potential benefit to participating in such a program.

    Episode 5, “Anatomy of a Hostile Takeover”, will be of interest to many readers of this blog. The panel features Warren Buffett, Robert Mercer, T. Boone Pickens Jr., Rudolph Giuliani, Sir James Goldsmith, James Bere, and several others.


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  • SpikeyGuy

    I’m deeply impressed with the careful research and considered thought you’ve given to this, and other posts, Josh. It’s been such a pleasure to come across your cogent arguments and presentation on such wide varieties of topics. I look forward to peering through more, when time allows. Blessings to you and your husband!