Celebrating Scalia

By Shadrack Muyesu

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nowledge, critical thinking, mental fortitude and fidelity to truth in the face of adversity. Antonin “Nino” Scalia is the enduring personification of these four critical elements that constitute the moral being.

They say that our experiences fuse into our personality; the past is an ingredient. It’s exactly what happened in Scalia’s case. Born into a Catholic family on March 11, 1936 as an only child, he would be an object of fuss for his larger family being particularly close to his mother who nursed him while his father, a college professor, fended for the family. Scalia Snr was an Italian immigrant who taught languages at Brooklyn College, which seems like a small detail until you consider the punch and poetry which would later define Scalia’s judgments and speeches. 

Scalia grew up in a mixed community in Queens, New York. He went to a public elementary school and later on to Xavier High School, a military school run by the Jesuit Order of the Catholic Church. More than anywhere else, it’s at Xavier High that his conservatism and deep religious convictions blossomed. Never a cool kid, and perhaps due to the culture of study he had been brought in, he remained an A student throughout his school life.

In 1953, he went to another Catholic Jesuit Institution, Georgetown University in Washington D.C., from where he graduated with a Bachelor’s Degree in History. More importantly, it is at Georgetown that he harnessed the debating skills that would serve him so well later in his career as jurist. His next stop was at the Prestigious Harvard Law School. There, he not only graduated with a law degree but he also met his wife, Maureen MacCarthy, a languages teacher like his dotting mother; together they had nine lovely children.

For all his love for history and debate, Scalia spent his first few years after school exploring Europe before taking up a job as an associate at a prestigious law firm in Cleveland, Ohio. Itching for the academia, he soon traded his job for a professorial position at the University of Virginia Law School. In 1972, he joined the public service when President Richard Nixon appointed him General Counsel for the Office of Telecommunications Policy. It’s his knack of solving complex problems while there that catapulted him to the Office of Attorney General for the Office of Legal Counsel where he was tasked with guarding the Presidency and advising the Republic in toto. Even for a man of his skill and ambition, it’s quite surprising that he steered the Republican Government safely through this tumultuous period – all thanks to an ingenious application of the law. It may be remembered that this was after the Watergate scandal, a time when the Presidency was not the most popular of institutions. 

He then served briefly at the American Conservative Institute and a teaching post at the University of Chicago before accepting Reagan’s appointment as Appellate Judge of the DC Circuit. Opinion after opinion, he pitched for a seat at the Supreme Court, finally attaining it when Reagan appointed him in 1986. He served with distinction until his death in February 2016 

Ethics

In many ways, the story of Scalia begins at the Supreme Court. Drawing from the wells of his conservative religious upbringing, his deep appreciation of history and love for debate, he went on to develop a novel textual, historical approach to constitutional interpretation.

The textual, historical approach was an answer to the evolutionist theorists that had hitherto dominated the debate around this area. While evolutionists believe the Constitution to be a living document to be interpreted with prevailing circumstances in mind, originalists regard the same document as static, one to be taken as it was at the time of promulgation. Although an originalist himself, Scalia went further to propose a new original meaning approach (to interpretation) which meant that originalist should not look for the original intention of the drafters at the time of promulgation when construing the Constitution but for the original meaning i.e. how the words were understood by the citizens at the time. For him, it’s the meaning of the words, and not the intention of the drafters, that is important

He dedicated his time on the Bench pushing his theory. Judgment after judgment, he warned the people against evolutionism, warning that by construing the Constitution according to current times, the evolutionists were usurping their powers by legislating on behalf of the people and the legislature. In ‘Lambs Chapel v Centre Moriches Union Free School District’, he argued against the separation of the church and the state arguing that historically, the church had always been a part of the American life. He preached against the jurisprudence in ‘Roe v Wade’, arguing that the right to abortion wasn’t contemplated anywhere in the American Constitution, that “if the people wanted it they would have said it and if they want it today they should simply call for a referendum and introduce the provision instead of making changes through back channels.” In ‘Morrison v Olson’, he denounced a law that called for the appointment of a special prosecutor to investigate the presidency arguing that it was invasion of the founding doctrine of separation of powers.

In his historical textual approach, Scalia would go back in history to source the prevailing opinion at the time of the promulgation of the Constitution. Ever studious, he pored through vast amounts of data and history with the result that his decisions were always based on adequate and proven data concerning matters before him. 

Choices and consequences

The ethical lessons here are numerous. Foremost, throughout his life, Scalia remained steadfast in his beliefs, however unpopular, the political costs notwithstanding. Most of his greatest decisions were dissents. He never compromised with the left or the moderate right; he sacrificed his moral and intellectual convictions in the process just to ensure that he was part of the winning side. Furthermore, he remained true to religious catholic upbringing, always taking to the pulpit to champion Jesus even when the gospels were unpopular amongst the societal elite and even though it risked his career on the bench. He did so full aware of the expected outcomes. As a Christian jurist, his person was always in touch with the immortal soul.

Secondly, he remained true to the law. A formalist, Scalia developed a formula which he followed in reaching his decisions. Even when he did not like the end result himself, he still delivered it – he never shifted goalposts. A case in point is ‘Texas v Johnson’ 491 U.S. 397 (1989) where the pro-government Scalia agreed with the majority in holding that the act of burning the flag was protected speech under the Constitution. Even when he was defending the impossible, such as when he was defending the unpopular Gerard Ford and Richard Nixon governments and protecting them from the reach of congress, he never resorted to unethical behaviour such as outright defiance of the law or crime. He simply beat the problems intellectually. He had an unparalleled capacity to think without fear, intimidation or pressure. 

Third, he was impartial in his dealings. He made every decision based on a logical analysis of utility. Throughout his lectures and his judgments, he endeavoured to remain apolitical and neutral on every issue only going with what the owners of the Constitution in 1788 wanted.  

Nino the Politician 

Nevertheless, there is one criticism that haunted Scalia to his grave. He departed from his principles to bungle the infamous ‘Gore v. Bush’ case in favour of Republican Bush, who had expressed intention to appoint him Chief Justice once elected. There were four obvious mistakes and contradictions with this decision. First, hitherto a fan of State autonomy, Scalia persuaded the court to take up the matter which concerned the election outcome in California and which was, by dint of a textual reading of the constitution, strictly the domain of that State’s Courts. Second, in ruling that the court had jurisdiction over this matter, Scalia departed from his textual, originalist principles; it was obvious from the constitution that the Supreme Court lacked jurisdiction. 

Third, he allowed the petition calling for a stay of the ongoing recount in California never mind that the petitioner therein (Bush) hadn’t showed that he would suffer irreparable harm. Tellingly, Bush needed to win in California to be president. While the initial results had controversially placed him ahead, the recount was turning out in favour of Al Gore – a Democrat who didn’t subscribe to his ideology. Lastly and most curiously, Scalia stopped the recount permanently, effectively declaring Bush president. In doing so, he had decided on behalf of the people, which power he not only agreed the court did not have but also absolutely despised the liberal judges for alluding that it did. In short, when it suited him, Scalia was willing to set his principles aside.

Another criticism was his willingness to “hang out” with litigants thereby bringing the court’s impartiality into question. In one instance, he accepted an invitation to spend time with Bush’s Vice President Dick Cheney when there was a case against Cheney pending before the Supreme Court. It shouldn’t be forgotten that Cheney was not only his friend and colleague from days past, he was also a republican like Scalia and that the case concerned releasing information held by the Executive. The judge had made a name for himself arguing against congressional powers to sub poena such information citing that they were an intrusion into the fundamental dictate of separation of powers.  When asked to do so because it showed a likelihood of bias to the public, Nino refused to recuse himself from hearing the matter. Again, Scalia had shown that he was willing to cast aside his morals if they threatened his career or friends. At the end of it all, with his fiery public speeches on controversial matters and obvious dalliance with government, Scalia singlehandedly politicised the court. 

Legacy

Scalia is a brilliant example to every aspiring religious jurist that one can be spiritual and still succeed in the profession. As stated, he was not only a conservative Christian in an increasingly liberal world, but he also served and distinguished himself in both private and public practice. 

More specifically, as an aspiring judge, I learn from Scalia the art of decision-making. He proved that decision-making is not a mechanical exercise of comparing positions and following the gut. He demonstrated that there is philosophy to the method. In his Law of Rules framework, he developed his textual historical approach in which he warned against following a set approach in deciding and confining oneself to certain boundaries; in other words, a judge must guard against making biased pronouncements in the name of interpreting the constitution. 

In short, Scalia was a judge with a philosophy; one could predict his outcomes. Many judges, certainly in Kenya, aren’t. Reading Scalia, I appreciate importance of a personal philosophy. as textualist myself, I intend to apply these principles in my career later on.  (