Scalia's Grave-Dancers Deserve a Harsh Verdict
When the news broke Saturday that Justice Antonin Scalia had died at age 79, my Twitter feed began to fill with hate. Not disagreement or disrespect -- actual hate. He was an ignorant waste of flesh, wrote one young fool. His death was the best news in decades, cheered another. Then there was the woman who just had to tell the world that she felt safer now than she had at the death of Osama bin Laden. And several people expressed the hope -- the hope! -- that Clarence Thomas would die next.
Thus we see the discursive toll of our depressing Supreme Court deathwatch. We’re actually rooting for people to die.
It’s unusual for a vacancy to occur in the midst of a presidential campaign, but it’s common as cake for activists to dream the hours away speculating on who’ll be next to go, and for journalists to count up the number of appointments they think the next president will get to make. Sometimes in their earnestness the activists of left and right do indeed sound as if they’re rooting for a death or two. They seem to think the justices whose votes enrage them deserve to go.
None of this is entirely new. My mentor, Justice Thurgood Marshall, didn’t die in harness, but I remember the deathwatch all the same. I was serving as one of his law clerks in 1980, the year Ronald Reagan was elected, and on election night, one of the television networks reported that Marshall had decided to quit the court, in order to give Jimmy Carter the opportunity to make an appointment. The report was false, of course, and Marshall was furious. Some in the building speculated that the story had been planted by activists hoping he would get the message and depart, clearing the way for a younger liberal voice -- much as, in recent years, some on the left have openly if cruelly urged Ruth Bader Ginsburg to step down, as though she owes them some special fealty.
Throughout the Reagan administration, movement conservatives kept their envious eyes on Marshall’s precarious health. After George H.W. Bush was elected in 1988, one silly activist went so far as to tell a reporter that he hoped that Marshall was keeping the seat warm for Thomas.
But here’s the thing. When Marshall, his health broken, at last stepped down in 1991, with a year and a half to live, there were only encomiums, even from conservatives. True, Twitter didn’t exist. If it had, perhaps the gleeful right would have been dancing in public. Instead, whatever champagne was drunk was poured in private. And that makes all the difference. To mute those cheers shows respect not only for the dead, but also for the institution.
When Chief Justice Fred Vinson died during the pendency of Brown v. Board of Education, Felix Frankfurter memorably called the event “the first solid piece of evidence I've ever had that there really is a God.” But he said it in private, and would have been justifiably furious had the clerk to whom he had made the comment publicized it during Frankfurter’s own lifetime. To trash the justices because we don’t like their votes (usually on a handful of issues) is to diminish the majesty of the court itself. The more we do it, the less reason there is for anybody to respect the justices when at last whichever side we’re on has a majority.
Marshall took a similar view. During the last year of his life, I was assisting him with his oral history, and we spent many hours together. One of the many delights of listening to his tales was the generosity of spirit with which he described his opponents. He spoke with warmth of the very justices who were busily chipping away at his legacy.
Nor was his affection reserved for his colleagues. Before becoming a judge, Marshall spent years litigating civil-rights cases, often at great risk to his life. In the course of his travels, he got to know many of the leading segregationists of the age, some quite well. When he talked about them in the oral history, his eyes would glow with affection. They were dead wrong on race, he said, but they weren’t bad people. Across the nation’s greatest moral divide, Marshall respected, and now and then even admired, those who fought him.
That quality didn’t make him unique among his generation. But it’s a talent we’ve largely lost.
Nowadays we burn too much energy evaluating people based on whether we agree with them or not. It’s a pardonable vice, and in the worst case perhaps a necessary one, but it can get out of hand. There’s a vast difference between “He’s wrong” and “He’s a worthless bag of flesh who deserved to die.” Sadly, we live in an era when every case is the worst.
The late Christopher Hitchens once wrote: “One test of un homme sérieux is that it is possible to learn from him even when one radically disagrees with him.” He was right. Those with whom we disagree will often have things to teach us, if we’ll let them.
Scalia was un homme sérieux in the classic sense -- a person of both seriousness and character, a man hard to bully. Did I disagree with his positions? Frequently, and often with passion. But he was a brilliant scholar and jurist, as well as a marvelous writer, and I never failed to learn from his wonderfully crafted opinions. The need to counter his arguments made mine better. And on some issues (the importance of robust protection of Sixth Amendment rights, for instance) Scalia’s opinions converted me to his cause.
It’s tragic that we can’t respect and admire each other across our many differences. It’s worse that we dance when people die. If the depressing deathwatch is the best we can do, I for one would rather go without a Supreme Court of the United States.
Carter was the only modern president not to appoint a justice.
And not me alone. The two great voices on the current court for the Sixth Amendment were Scalia and Ginsburg.
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