Part 2 Judge and Justice.
On Nino’s last visit with my wife Bonnie and me, Nino and I were walking on the beach when we ran into my next-door neighbor, the actor Ryan O’Neal, who commented “You guys must have been the only 2 conservatives at Harvard Law School.” We looked at each other and simultaneously shook our heads. No, we told Ryan, in the 50s, the law school was conservative. And not only had Harvard changed, the Georgetown we knew was gone. The Jesuits who taught us intellectual rigor – logically vetting every assertion –have succumbed and shun logic to embrace PC, initials which used to stand for a British police rank, not Political Correctness. The new PC tossed truth and replaced it with Orwellian language. Clinics where abortions are performed became reproductive health services; illegal immigrants became undocumented workers; terrorist prisoners became detainees; pro-life supporters became anti-abortion activists; anyone with a conservative viewpoint became an extremist. But the perspective Nino gained from our education proved particularly valuable to one charged with the care and protection of the Constitution, viewed by the Left as an obstacle to their agenda. The Left claims a “living” constitution is required by a “changed and changing” world. [Note the loaded language, implying our Constitution is dead]. Translation: the Constitution means whatever 5 unelected political appointees say it means. Nino frequently raised the rhetorical question: how would the Founders react to that. The drafters feared a government which would deny their rights and they feared a democracy which would enact laws based upon transient passions. Over a period of 5 months, they drew upon political philosophers including Montesquieu and Locke, and debated various governmental systems coping with the realities of human nature. The Federalist papers are replete with scenarios based on what people likely will do for better or for worse. The Founders created checks and balances to form a government never before seen on the planet, one which Gladstone characterized as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” Nino insisted on giving the document the meaning that was understood at the time it was written. It is that Constitution which ensures our rights by requiring all laws, executive actions and judicial decisions to conform to it. Nino understood that principle. He followed it even when the result was not one he thought desirable. He pointed out that, if one disagrees with any Constitutional provision and thinks it should be changed or enlarged, there was a remedy: convince one’s fellow citizens to amend it. That was how the abolition of slavery and the enfranchisement of women were accomplished. We were given a republic not a democracy. Elected representatives were put between the people and the laws. Edmond Burke’s speeches were known to the drafters and he made the point eloquently. When his constituents objected to his not complying with their current wishes on a particular issue, Burke stated “Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.”
At the conclusion of the Constitutional Convention, a woman is said to have asked Benjamin Franklin: “Well Doctor what have we got, a republic or a monarchy?” Franklin replied, “A republic . . . if you can keep it.” There is good reason to fear we have lost it. Nino has been criticized incessantly by a new breed of politicians, judges and lawyers for his fidelity to the Constitution. They have a frightening concept of what judges are to do. I heard one appellate federal judge argue against splitting the enormous territory of 9th circuit because it would deprive the judges of the ability to develop the region politically, economically, and socially. The Constitution does not give judges such authority and who believes they would be good at it. Nor was that judge an anomaly. I recently received a publication from Harvard Law School which contains this statement regarding a book authored by Supreme court Justice Breyer: “Breyer’s book examines how US courts should respond to the new reality of interdependence that globalization has ushered into areas previously thought to be immune. He encourages judges to become more attuned to the legal thinking outside the country and to be more considerate both of the implications of American legal decisions for foreign nations in areas such as national security and trade, and how such international experiences might inform better American legal decisions.” Does that sound like a judge? Or are those considerations in the purview of a member of the legislative or executive branches of government? In that same publication, I found this tribute to Nino from Justice Kagan: “Justice Scalia has taught everybody how to do statutory interpretation differently, more legal thinkers now consider the meaning, wording and understanding of statutory texts in the school of thought known as textualism.” Kagan said she believed that Scalia’s part in this change in the role of the judiciary were earned him a place in history. A nice sentiment but inaccurate. Kagan missed the point. Nino always had advocated that the Court should return to doing what judges are supposed to do – interpret the language, and not act as if they were legislators or politicians. One of the best expressions of his position was in writing more than 20 years ago in his dissent in Casey v. Planned Parenthood, 505 U.S. 833 (1992), a case that was expected to reverse Roe v. Wade (and its companion case Doe v. Bolton,) extreme examples of judges finding rights in the “penumbra” and “emanations” of the Constitution, rights that were never there in any form. Abortion on demand was “enacted” by the Court. There was no reversal. Rather, abortion on demand was upheld by 5-4 margin. The opinions are worth reading if one wants to understand how far the Supreme Court has floated from its moorings. Read the Scalia dissent and contrast its scholarship, logic, eloquence and just plain common sense with the opinions that made up the plurality for the Court. In writing the lead opinion upholding Roe, Justice O’Connor stated: “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.” Please read that quote again. She concedes there may be error but believes that error should not be corrected because to do so would be an admission that the Supreme Court was wrong and the Court’s reputation would be damaged. Is that not incredible? Here are excerpts from the Scalia dissent. But whether it would “subvert the Court’s legitimacy” or not, the notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening. It is a bad enough idea, even in the head of someone like me, who believes that the text of the Constitution, and our traditions, say what they say and there is no fiddling with them. But when it is in the mind of a Court that believes the Constitution has an evolving meaning, … that the Ninth Amendment’s reference to “othe[r]” rights is not a disclaimer, but a charter for action,….; and that the function of this Court is to “speak before all others for [the people’s] constitutional ideals” unrestrained by meaningful text or tradition–then the notion that the Court must adhere to a decision for as long as the decision faces “great opposition” and the Court is “under fire” acquires a character of almost czarist arrogance. ….. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here–reading text and discerning our society’s traditional understanding of that text–the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. … If… our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school–maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours… Value judgments, after all, should be voted on, not dictated;* * *… today’s opinion…. its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. …Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining. The Scalia dissent is a primer on the Constitution and the Court and should be mandatory reading in every civics class in our nation. Nino was an amazingly generous person. He genuinely liked people whose actions were reprehensible. I could not be so generous with justices whose abortion decisions caused the death of millions of innocents. But then I embody the stereotype from my grandparents’ birthplace: Irish Alzheimer’s, one forgets everything but the grudges. Not so Nino. Robert Bolt’s play about Thomas More took its title, A Man for All Seasons, from the 16th century writer Robert Wittinton: He is a man of angel’s wit and singular learning; I know not his fellow. For where is the man of that gentleness, and affability? And as time requireth, a man of marvelous mirth and pastimes; and sometimes of as sad a gravity; a man for all seasons.
The words fit Nino. We shall not see his like again.
Antonin Gregory Scalia – Vaya con Dios
Man is not free unless government is limited.
– Ronald Reagan