Antonin Scalia’s Legacy and the Righteous Machinations of Law

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Antonin Scalia’s Legacy and the Righteous Machinations of Law


By Christian Matheis (February 16, 2016)


Following the recent death of Supreme Court Justice Antonin Scalia, many, including long-time political opponents, will probably not wish to risk publicly engaging in crass or irreverent remarks. Speaking ill of the dead could disrespect the very real grief of the living, treading with a callous indifference upon the sorrow of those who no doubt miss Scalia’s presence in their daily lives. And this seems right to me: the wish to respect the living as they endure their grief. All the while, media portrayals and public opinion about someone holding high office could very easily turn into a misleading fetish. Specifically, the fetish of downplaying the vices of the deceased while emphasizing his alleged virtues. In response to Scalia’s death, the tolerance-minded thinking that informs classical liberalism has gone astray in conflating one thing, respect for those who grieve the dead, with another thing, covering up Scalia’s record of assisting vicious cronyism at the expense of social justice.


I find no reason to perform false reverence for Scalia as a Supreme Court Justice, even while I acknowledge how some must grieve Antonin Scalia in his most intimate social circles. Ignoring the way others feel, a person could pretty easily cultivate a hardhearted disregard for suffering after all.


I will do nothing clever in this article that might seem to lead a reader to temporarily doubt my convictions against memorializing Scalia given his record as a “public servant.” At best, Scalia counts as a servant of private interests who used his influence to foster worship of robber-baron capitalism and contempt for those living in completely avoidable poverty, all the while lending his voice as a vitriolic antagonist who stoked scorn for those already facing cruel treatment by a misled majority. Journalists and historians, liberal and conservative alike, have and will seek to portray Scalia in accord with a familiar, petty equivocation: “In Victory or Dissent, Antonin Scalia Was a Man of Strong Opinions,” to quote one among many similar articles (The Blaze).


I will not remember or revere Scalia this way, with trumped up pandering to fabricated temperance. Charisma does not balance out collusion with cruelty.


Let us consider how Scalia used the strength of his Supreme Court position. In doing so, I will not rehearse what legal analysts have spent decades showing, and what Scott Lemieux recently put so clearly:


[…] had Scalia’s dissents ultimately shaped America, women would not have reproductive rights, the federal government could not effectively regulate healthcare, LGBT people would not have the right to engage in sexual intercourse without fear of arrest – let alone the right to marry – and states could single them out for legal disabilities. Women could be excluded from state educational institutions, public schools could teach creationism in science classes and prisoners could be assaulted by prison guards. And, in large part because of Scalia, in America today, the Voting Rights Act has been gutted, the rights of employees and consumers have been curtailed, Brown v Board is more likely to be used to stop integration than to promote it and moneyed interests increasingly dominate elections (Lemieux 2016).


Instead of working up contrived defenses of a disingenuous sort, I will put Scalia’s judicial actions in context alongside the long arc of his legacy. It will help to back almost a century to consider a comparative case.


The Tale of Julius Streicher

A handful of stories I read in early adulthood haunt me. Among them, I count the tale of Julius Streicher as one of the most informative and morally sobering. Many of us learn about a range of factual and embellished stories about the Nazi state genocide program carried out over years through bureaucratic governmental and military operations. Scholars and researchers have devoted extensive energy in trying to explain how the majority of Germans and other Europeans did little, and often nothing, to halt the arrests of their neighbors and co-workers by Nazi officials. As the Third Reich detained, relocated, tortured, and exterminated Jews, gays and lesbians, people with disabilities, and other so-called “undesirables,” the broader majority of Nazi-occupied European society (as well as the U.S. government) knowingly rarely interfered, and most even colluded out of complacency or overt contempt.


Thousands of government officials, hundreds of thousands of military personnel, and some private for-profit companies conspired to perpetrate genocide. To understand some aspect of how state-sponsored genocide occurred in Europe in WWII, it matters to glance at the role of Julius Streicher who helped to catalyze the earliest phases of the Nazi agenda.



(Julius Streicher)


Following a cue from Ward Churchill (1993), let me tell you about Streicher’s fate. First, though, as an adherent to restorative and transitional justice, let me state clearly and unequivocally that I condemn the brutality of state-sponsored executions. If anything in my writing appears to valorize the execution, the fault remains with me in failing to find alternative phrasing.


Tried and convicted for crimes against humanity in Nuremburg following the war, the court attached a special provision to Streicher’s sentence (as well as to the sentences of various other convicted war criminals). After the execution, the court ordered his body cremated and the remains dispersed without permanent burial or specific record so that no one could ever pay Streicher posthumous respects.


To make sure the point takes hold, let me quote the sentence as issued: “no one should ever know a particular place to go for reasons of mourning his memory” (quoted in Churchill 1993). Let that detail set in for a moment.


The court found Streicher’s role in perpetrating genocide so egregious that they sought, in seemingly unending perpetuity, to forbid any ritual return of Streicher to honor and dignity among living humans. Perpetual amemorial death and erasure: recorded in history and obliterated from reverence all at once.





What had Streicher done to warrant this symbolic condemnation?


Consider the precise role that Streicher played. As chief editor Der Stürmer beginning in 1923, Streicher oversaw the widespread use of media propaganda aimed at portraying Jews and other “undesirables” as filthy, evil, and purely corrupt scourges on German society. “Streicher and his like did not persuade all or even most Germans to hate Jews. But they did establish an attitude of indifference toward Jews without which the Holocaust could not have occurred” (Bytwerk 2001). He had actively dedicated himself to the tasks of anti-Semitic social slander as early as 1919, participating in different political and paramilitary organizations aimed at fostering hatred of Jews. In case you wonder whether he had any hesitations in his pattern of anti-Semitic proselytism, take note that Streicher even published three different anti-Semitic children’s books intended to foster contempt and hatred among youth early in life.


Throughout the build up to the full-scale rise of the Nazi’s to totalitarian control of Germany, Streicher played one of the pivotal roles — and for some, the pivotal role — in making anti-Semitic hatred appear as reasonable as loving one’s own family. If that seems like an embellishment, you need only read some of the many accounts of the propaganda network that drove anti-Semitism from a condition of latent intercultural discord and xenophobia into a societal requirement as a pivotal virtue of German patriotism — from a milieu of unwarranted bias toward a campaign of active, state-sanctioned social brutality. Before Streicher, let us acknowledge that many gentile Germans likely distrusted or felt contempt for Jews; however, as a result of Streicher’s management of news media, millions embraced bloodlust at worst, indifference to slaughter at best.


Have we learned from this?


How ironic that journalists and politicians wishing to appear gracious will try to portray Scalia’s regressive immoderation with liberal moderation. And some writers have already, keeping with the tenets of regressivism, found the means to exploit the positive motives within gracious moderation in order to commit revisionist retelling of Scalia’s career. We can easily find those who already seek to embolden sentiments of gratitude and admiration for what George F. Will refers to as, “Scalia’s elegant mind…” (Will 2016).


As one of the most well-known architects of the pseudo-intellectual field of “textualism,” Scalia helped within his lifetime to orchestrate a coup in delivering the dogmas of textualism into the formal training of young lawyers. The strategy of textualism, more and more widely adopted by U.S. law schools in recent decades, appears on its surface to revere philosophical insights into meaning, language, and the supposed wisdom of historical figures who carefully crafted historical documents. In doing so, textualists commit the fallacies of appeal to authority and appeal to prior claim by pressing for rigid obedience to supposed “original intent” of a legal precedent at the time it was established. A principled defense of textualism in practice could, I admit, show the strategy as a useful thought experiment for weighing out any number of variables and concerns in accord with conservative reluctance to make swift and broad alterations in law. But Scalia did not wield textualism as one among many strategies of legal reasoning. He did not demonstrate textualism as a reasoned position through which to understand the rule of law.


Scalia sought to impute textualism as both the primary form of legal analysis, and the last line of defense for democratic liberties. Specifically, Scalia rendered his legal opinions as if textualism alone would stand against some grand state-of-nature myths of scarcity surrounding the also-contrived belief in a primal evil buried deep in all of human nature (for Scalia’s own personal account of advocating this position throughout his career, I recommend the interview with Jennifer Senior in the October 2013 issue of New York magazine).


Scalia and his ilk treat textualism as the sole form of adjudication for court justices, and yet he could never give more than a brute force assertion of the position:


I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change. I mean, the notion that the Constitution should simply, by decree of the Court, mean something that it didn’t mean when the people voted for it—frankly, you should ask the other side the question! How did they ever get there? (Scalia quoted in an interview with Senior).


Here, Scalia would have the general public, young lawyers in training, and his peers seated as court justices conveniently forget which narrow demographic, historically and without a doubt, has generally had the power to vote certain arbitrary “meanings” into law, and to exclude other meanings and values just as arbitrarily. As philosopher and legal scholar Catharine MacKinnon points out, the strict adherence to textualist originalism always benefits those seeking to retain unjust claims on civil authority since anything that seeks to question the historical ascendancy of the status quo will always wind up portrayed by those in power falsely as radical and unreasonable (MacKinnon 1989).


In other words, textualists game the entire system by viciously portraying expansion of justice against injustice as a threat to some trumped up and mythical original tether – as an offense against genuine and lasting salvation through conservative policy. Social justice would, the textualist asserts, cut ties with the founding forefathers [sic] who we must believe saved us from our wretched mystery via their pioneering spirit for civilization (please note the sarcasm). In this way, textualists like Scalia ridicule any historically marginalized group by portraying them as seeking to corrupt the true democratic spirit.


Textualism in the hands of a Supreme Court justice with a life appointment ends up among the worst kinds of politically expedient, convenient, and profitable manipulations for the haves at the expense of the have-nots.


Circling like wanton predators yet costumed to appear as sorrowful mourners, we find pundits, sycophants, media personalities, and politicians clamoring for a piece of the pop-culture pie. Following Scalia’s death, few will dare to risk religious, superstitious, or secular censure by calling a spade a spade. The mass of media writings on Scalia will pander to a false reverence and in doing so will, I suspect, wind up portraying Scalia as deserving respect in his role as Supreme Court justice even while he spent his career seeking to erode both the meagerest rights of subsistence (mere survival) and robust rights of liberty (broad pursuits of one’s conception of a good life). I do think George F. Will has made at least one highly accurate and disturbing remark regarding Scalia’s legacy: “Scalia, always a teacher, will live on in the law and in the lives of unnumbered generations who will write, teach and construe it” (Will 2016).


And what must we make of Scalia’s teachings that, it seems, will survive even after his death?


Julius Streicher’s total commitment to anti-Semitism, worked out among the people through mass media, converted lies and misinformation in order to make the authors writing for Der Stürmer appear to the general public as if they had uncovered the originary, essential texts underlying German nationalism. Streicher’s cultivation of vicious social sentiments simultaneously bolstered hate while covering up the arbitrary origins of state-military anti-Semitism that eventually functioned as morally and legally requisite for German citizenship.


Antonin Scalia contributed to the U.S. much of what people like Julius Streicher contributed to the rise of Nazi state genocide: he used his influence to portray hatred of the vulnerable as rational and integral to justice. Where Streicher used the machinations of mass media propaganda, Scalia used propaganda and called it the righteous machinations of law. Scalia helped make people believe in institutional cruelties as democratic virtues.


We ought, I think, to reflect on the broad leaning of Scalia’s legal opinions as either an embarrassment or an affront (or both) to judicial processes, particularly given how his writings appear typically vested with desperate and nonsensical attempts to ridicule society’s most vulnerable populations while also falsely presenting this approach as laudable and necessary. Perhaps I might think differently of Scalia and other Supreme Court appointees if not for the life-term, a position of nearly unmatched political influence that can typically only end in voluntary retirement, resignation, or death.


Let not the death of an influential fascist make our relief turn to bloodlust or callous indifference. But do count the relief from fascism as real.


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