Sorry For His Family…Moving On: Brief Reflections on the Passing of Antonin Scalia

While I revel in the death of no one, I cannot abide the hagiographic nonsense that is presently being offered by persons across the spectrum about how recently departed Supreme Court Justice Antonin Scalia was “passionate” and brilliant, ad infinitum. There is nothing brilliant about putrescence, nothing insightful and worthwhile about venality posing as insight. To say that there is nothing unconstitutional about executing innocent people (as he did in fact say), or that it’s OK to imprison persons for “gay sex,” among other things, is never the work of a genius no matter the big words and poetic flair with which they might say it. Those opinions are evil, vile and worthy of utter derision. They are not the work of a genius, but a fetid little man whose moral calibration slouched towards those of Torquemada and the Inquisitors. I feel for his family and mourn their personal loss. And that is the extent of my mourning, as it is the only type of which one such as this is deserving.

Sorry if this offends you, or appears to violate the old maxim that one ought not speak ill of the dead. But I have long added an asterisk to that sage advice, and said codicil goes something like this: I will strive to never speak more ill of the dead than they spoke of (or did) to others while on this Earth. And that caveat gives me quite a wide berth indeed when it comes to the likes of Scalia. Bottom line: I may speak ill of the dead, but at least I wouldn’t have glibly supported his death while still alive, nor tried to send him to it by virtue of my own callousness. Would that several death row inmates (including at least one later proved innocent) could say the same. My rhetoric towards him injures no one. His very existence on the court injured many. To remember him fondly is to ignore that; it is to suggest that one’s sparkling personality and cocktail party banter outweighs the work of one’s life; that one’s love of opera and fine wine makes up for the cruelty of one’s decisions, or that by merely cloaking those opinions in the wretched cop-out that is Constitutional originalism (or textualism), one can be excused for the impact of those decisions (after all, it’s not me, but rather the founders with whom one has the beef!).

Yes, the founders indeed…and anyone who still cleaves to them as moral or legal exemplars, despite their insipid support for enslavement, white supremacy, institutionalized misogyny and all manner of illiberal ethical vulgarity. That they were products of their time doesn’t acquit them of their crimes, unless one believes that morality is time-bound—but it surely offers no refuge for Scalia, who was a product of this time at least in theory but who believed a modern country should hew to the prejudices and caprice of long-dead bigots. In that regard he is more insipid than they, even were we to allow some forbearance to those who wrote the Constitution, given the common feelings of the day. He had no such excuse. He simply believed in those prejudices and wanted them ratified because he preferred America the way it was under open and unquestioned white male elite hegemony. But he had not the guts to proclaim as such, choosing instead to hide behind process and a morally stunted jurisprudential theory. He was a coward in every meaningful sense of the word, lacking the courage of most reactionaries who at least have the guts to admit they want to “take their country back” to some fictive time. Honestly, I have more respect for open advocates of theocracy or white nationalism than I did for Scalia. At least they don’t try and pretty up their beliefs with abstract theory and call it nuance.

So by all means, I wish his family well and that he rest in peace (whatever that may mean). But for the rest of us, we have work to do, unraveling the damage done by him and his loyalists. Let us begin now, erasing forever the imprint of his very existence as a jurist from the national culture.

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