Erik Hammar

Today the news reached me that Antonin Scalia, 79-year-old US Supreme Court justice, has died in Texas. He served on the Supreme Court from 1986 until his death. He was an intellectual I admired, a rare breed of public intellectual who dared rely on rigid, honest argument even in the rough-and-tumble of contemporary political debate.

As he leaves this world he is derided by those uninterested in and ignorant of the arguments he used to justify his legal philosophy. Comedian Justice Wainwright (@JusticeBlaine) tweeted what he probably thought was full of moral insight and wit:

“Antonin #Scalia requested cremation in his will, but millions of women will meet tomorrow to discuss if that’s really best for his body.”

Of course, Scalia has attracted scorn from American (and other) progressives for his votes on cases on abortion. His view has been that a right to abortion is not ensured by the US constitution, and so should be left, like all other things untouched by the constitution, to the democratically elected legislative assemblies on state and federal levels. That the US constitution was not originally intended by the founders to guarantee a right to abortion is, as I understand it, rather obvious. Proponents of the idea that it nevertheless ought to be seen as protected by the constitution (like Justice Stephen Breyer) have thus had to resort to kinds of readings of the constitution very different to that of Scalia.

Scalia’s was an originalist position. He held that the constitution ought to be interpreted based on what the text was intended to mean at the time of its adoption. “Living constitution” theorists, or contextualists, on the other hand, hold that instead, the constitution ought to somehow be interpreted in light of today’s moral, social and/or political context. So even though they can agree that a right to abortion or prohibition of capital punishment were not originally intended to be included in the constitution, the right way to interpret the constitution today, they say, will lead one to the conclusion that these things are in fact constitutionally protected/prohibited today.

Though I am not a legal scholar, Scalia’s criticisms of the contextualist position always struck me as convincing. The contextualist position, in its sublime methodological vagueness (figuring out what the spirit of the constitution in today’s circumstances compels us to interpret it as saying…), leaves tremendous power in the hands of unelected judges, as Scalia would often point out. Make the courts politically powerful and you politicise the processes surrounding them. Justices should not be thus empowered, Scalia thought. Their role is to interpret and apply law based on what it meant when it was adopted, and not to, effectively, make policy that could and should be made through the normal democratic means and methods. If the interpretative remit of the Supreme Court judges is as wide as the contextualist position entails, democratic power and legitimacy is undermined. This is a convincing argument, and I believe only few would disagree with the democratic principle and the importance of the democratic accountability of power.

This leads us to the first salient issue I want to discuss. Amidst the screeches of daily political debate, nuance lives dangerously. The difference between 1) thinking abortion to be a bad thing, and 2) thinking it a bad thing that unelected judges decide whether abortion is a legal right, is a difference carelessly missed or opportunistically ignored. Scalia, of course, constitutes an obvious opportunity for the politically ignorant and the politically ruthless to join hands and decry a conservative intellectual. Scalia was also, admittedly, a political conservative, who opposed abortion politically. One may thus distrust what were his “real” motives behind voting certain ways on the court. But even if one takes the rather incredible position that Scalia’s legal writings and thought were a mere façade for ruthlessly political, interventionist activity on the court, his arguments remain. The question of the proper role and activity of the court is still there, and the force of Scalia’s arguments is left untouched. The fact that someone presents an argument disingenuously (which I doubt he ever did), does not ipso facto weaken the argument (though it may often weaken it rhetorically, may make us justifiably suspicious, etc.). The convincing challenge of the originalist position to, e.g., pro-abortion sections of American society must still be met. (In what follows I will bounce arguments off an imagined “pro-abortionist”. It applies equally to other issues, but the abortion one is preferable because it is well-known and the adversaries are clear cut.)

Here things get really interesting. There are a number of positions logically open to the anti-Scalia, pro-abortionist. Either, they can agree that an originalist/textualist position is preferable, but that even on such a view abortion is protected by the constitution. This position lacks empirical support, for it is highly dubious that an originalist reading would lead to that kind of constitutional protection of the right to abortion. Second, they may hold that the right way to interpret the constitution is some contextualist way, and that such a method appropriately employed yields the constitutional protection of abortion. This position’s weakness is twofold. First, it undeniably puts more power in the hands of unelected judges. The typically progressive pro-abortionist may end up rather cognitively dissonant about this fact, and may be uncomfortable to affirm a view which entails it. Second, even if the pro-abortionist can swallow that fact, he is committed to something else: When the court inevitably later on uses the long leash given to them by legal contextualism to rule against some other favourite doctrine of the pro-abortionist, he must accept the decision as legitimate. Importantly, he must accept it as legitimate even if it is made in the interpretative rather than the textual corner of court rulings, as it were. He must not, to put it concisely, demand staunchly originalist readings of the constitution on issues of free speech and the protection from arbitrary police searches, say, yet affirm a highly contextualist reading when it comes to rights of abortion and the prohibition of capital punishment.

The upshot is that neither of these available positions seems immediately attractive for the progressive, liberal pro-abortionist. But interestingly, there is another option open to him. This option rejects the whole demand for consistency in legal-political thinking. Imagine the pro-abortionist, irritated by what he takes to be wordplay and sophistry on our part, exclaiming:

“Damn interpretative consistency, I just want to ensure the most just, or moral, outcomes! My concern is with ensuring a right to abortion, free speech and protection from arbitrary searches, whatever the means. If that leads me to an inconsistent legal philosophy, so be it!”

In other words, one may of course hold that since achieving the right outcomes is what matters ultimately, the charge of inconsistency can be accepted but easily shrugged off. “OK, my legal philosophy does not stand up. Bu so what if it is rhetorically effective and put to the right use?”

Let me quickly note a couple of nuances here. The above position is consistent with seeing is as procedurally just that only elected officials (rather than judges) make policy. It may just be that that consideration sometimes, when the stakes are really high, simply is not important enough. One can value an unpoliticised Supreme Court, but still think that all in all, it would be better for it to be politicised in the right way when a momentous issue like abortion is at stake. One can equally think procedural justice is a muddled concept, but still hold that the Supreme Court should be rigidly textualist and stay away from de facto policy-making, because of certain empirical beliefs about how things would turn out, in the long run perhaps, if it did not thus limit itself.

Now, there are many interesting points to make about the “Consistency be damned” view presented above. But the most interesting is how it creates a friction between the level of political argument and the level of ethical reasoning. Because the employment of arguments about what the role of the court is, presupposes that one does not simply employ them to gain a political advantage. If the pro-abortionist actually said:

“On this issue of abortion, the court better take a contextualist view. That is the right thing to do. Of course, if I believed my political aim would be better served now or later by a textual view, I would encourage the court to be textualist.”

No one presenting the above would have any credibility, for the argument would amount to nothing more than the view that the right role of the Supreme Court is the one which for the moment is conducive to my political aims. But the political success of certain views, and even less of a certain person’s views, is not in anyone’s book a good criterion for determining the proper methods of a legal body. So the argument fails, and its honest application robs it of the rhetorical force which was the reason for adopting it in the first place. So to be effective, it must be offered with disingenuous conviction. I am not saying that this is necessarily a corrupt position, and I shall talk a bit more about it below. But it is certainly not an obviously straightforward position to take.

Let us bring the discussion back to the late justice Scalia. What is the upshot of these arguments? In my view, it is that the critics of Scalia ought to take a step back and contemplate the strength of their position. Of course, if one assumes ex hypothesi that Scalia’s legal views are merely a façade for bigotry, one is unlikely to change one’s mind, but starting from that assumption it is difficult to avoid circularity. For if one then asks why Scalia is thought to be so bigoted, the answer is likely to be that his votes on the court indicate it; and so the circularity is evident. But this trap aside, I hope to have shown that the critic of Scalia has a lot of hard work ahead of him. To repeat: Either, he must defend an originalist view and try to show that the constitution nevertheless protects a right to abortion (to stick with our example). Or, he has to affirm the contextualist proposition, but without blinking at the consequent power of unelected judges, and without appealing to plausible, originalist readings when it would suit his politics. Or, thirdly, he has to get involved in the dual-level difficulties of disingenuously using legal argument to achieve what he perceives as morally highly desirable outcomes. (For an interesting analogy to this, see Stocker (1976), “On the Schizophrenia of Modern Ethical Theories”.)

As my imagined quotation above demonstrates, this cannot be done explicitly without completely losing the very rhetorical force for which the approach was chosen in the first place. Hence, it will involve political argument put forward disingenuously. It will be like the utilitarian who uses the political language of objective, intrinsic, inalienable human rights for its rhetorical force in actually bringing about more utility, even if she thinks that the idea of inalienable rights really is nothing but “nonsense on stilts.”

Summa summarum, then, the views of Scalia propose a terrible challenge to liberal Americans, who try to push their agenda within the bounds of the US constitution. The “consistency be damned!” view may well be ultimately justified. But it is a position which is far from obvious, and which requires a lot of work. A defender of it ought to be humble. Humility, thus, is what a great mind like Antonin Scalia deserves from his opponents as well as admirers today – not cheap scorn and unfounded vilification.