I’ve got eyes for the policeman’s wife… An Australian perspective on Scalia

I’m still waiting for the day that we don’t immediately turn the death of a public figure into a political slinging match.  That day isn’t today.

Scalia was an exceedingly complex figure but his negative impact on the lives of minorities in the United States (and, by extension, most of the Anglosphere) shouldn’t be swept aside in an attempt to find ‘nuance’.  On the surface, he was an abrasive homophobe.  On the inside, he was an abrasive homophobe.  He was an abrasive homophobe all the way down.

The lesson of Scalia was how he translated this homophobia into the machinery of politics.

Federal systems of government transfer extraordinary power into the hands of the judiciary.  Under most standard conceptions of federalism, the court polices the federal legislature to ensure that it does not exceed the terms agreed when the sovereign states entered into the agreement to federate.  Disturbingly, this includes an ability for the court to declare particular pieces of legislation ‘invalid’.

Perhaps the most important part of Scalia’s jurisprudence is about the limits of the Court to interfere with the legislature’s ability to pass laws.  The key view was that if social values had changed so much since the time when the Constitution was written, the people would hold a referendum to change it.  The Court should not use its unchallengeable power to interfere with the democratic process, and it shouldn’t interpret the Constitution to fit what the judges on the Court imagine to be public attitudes.

It’s this last point that causes a lot of confusion about Scalia.  He was very, very happy to express his obnoxious moral views about a wide range of social issues, but usually in response to the rest of the Court attempting to normalise its moral views.  For my money, I would prefer a judge who openly declares their biases and prejudices to one who pretends that they don’t have them.

Comments about Scalia’s backwards attitudes are somewhat misplaced.  The Constitution itself is a backwards document, written in a time when women didn’t have the vote by a bunch of people, most of whom were cool with slavery.  Written constitutions — particularly those with entrenched rights — stunt the natural development of legal cultures and prevent Parliament, as representatives of the people, to give full effect to the wants of the population being governed.  When Scalia says that particular provisions of the Constitution do not invalidate laws to imprison homosexuals or to restrict marriage equality, he’s right: Americans are being governed by a bunch of dead white guys who wore tricorn hats.

Complicating this mix is that Scalia was inconsistent on this.  There are more than a few decisions where it is very difficult not to suspect that Scalia knew the answer that he wanted and reverse-engineered an answer.  But this should make us think more carefully about whether we would want to give Scalia the unfettered capacity to invalidate legislation passed by parliament.

You can’t say that constitutionally-entrenched human rights that restrict the legislative capacity of a country are fine while simultaneously getting upset that Scalia didn’t use this power to interfere with the legislative process.  The two have to come together.  The same rights that will protect helpless refugee orphan children from being sent to a torture chamber on the moon will be the same rights that protect Big Tobacco’s right to dump nuclear waste in your kids’ sandpit.  Scalia brought that problem into focus by arguing for limits to the Court’s power to interfere, and yet people are still upset that he didn’t use that power to advance particular social causes.

Put into the Australian context, would you be happy giving unfettered capacity for a Court to overturn legislation if the bench were filled with Tony Abbott types?  Or, if you’re from my side of politics, if it were filled with Christine Milne types?  Whose moral intuitions should be normalised through the legal system?

Scalia was a complex guy with bad, terribly bad, opinions.  It is a shame that the public only looked at the surface — a bunch of quips equating homosexuality to murder, a bunch of quite inappropriate insults, a bunch of soundbites about the death penalty — rather than an opportunity to understand his approach to legal reasoning.  We see this problem a bit in Australia: High Court opinions that side with the Government over refugees are dismissed as ‘bad’ because emotional people wanted a particular outcome regardless of the process, and High Court opinions about the limits of executive power are discussed only in terms of pop-atheist campaigns against chaplains in school.  Perhaps Scalia’s replacement will help more Americans to participate in the conversation about the legal process without switching many of them off with his abrasive style.  Perhaps Australia needs a judge who is more of a public figure like Scalia was, but without the hideous personality flaws.


Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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