Why you — yes, you — should take Scalia’s place on the court

Why you — yes, you — should take Scalia’s place on the court April 3, 2012

Three years ago we witnessed the extraordinary spectacle of an entire political party taking sides against a virtue. The Republican Party united to denounce empathy.

You're smarter than this guy -- a lot smarter.

The proximate cause for that weird little tantrum was President Barack Obama’s statement that empathy was a desirable quality in a Supreme Court justice.

That was an unremarkable comment. Of course empathy is a prerequisite for a justice because empathy is a prerequisite for justice itself. Every basis for justice — legal, religious, rational — derives from empathy. Without empathy there can be no justice, no equal treatment under the law, no guarantee of due process or of any other rights for other. Without empathy there can be only power, privilege, and the defense of privilege by power — the rule of the jungle but not the rule of law.

We couldn’t ask for a clearer illustration of that than the one recently provided by Supreme Court Justice Antonin Scalia. Solicitor General Donald Verrilli, discussing the free-rider problem created by the millions of uninsured, spoke of “the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.”

Scalia responded, “Well, don’t obligate yourself to that. Why — you know?”

Justice Scalia’s remark there isn’t addressing the Affordable Care Act or its constitutionality. He is addressing an earlier law, the Emergency Medical Treatment and Active Labor Act, signed into law by Ronald Reagan in 1986. That’s the law encoding the “social norm” Verrilli mentions — the law that requires hospitals to provide emergency care to anyone in need regardless of their ability to pay.

Scalia’s suggestion was that this law be dismissed. Or perhaps just disregarded because, eh, it’s just a law, so whatever. He did not try to say that it was unconstitutional — it clearly is not. He was simply suggesting that he finds it inconvenient and thus that we, the people, ought not to have written into law a social norm that runs counter to the social Darwinism he seems to prefer.

It’s possible that Scalia was just kidding, just saying something outlandish and outrageous just for kicks and giggles.

But it didn’t seem like that. It seemed as though Scalia was genuinely, sincerely advocating the stance of an utter idiot.

And let’s be clear, if he meant what he said, then Antonin Scalia is an idiot — a bad justice, a bad lawyer and a bad human being. If he really meant what he said, then Antonin Scalia is a very, very stupid man.

This is not the kind of stupidity that has to do with innate intellectual capacity or the lack thereof. It is not a level of stupidity that can be achieved through simple ignorance. This is a depth of stupidity that can only be achieved through the deliberate rejection of empathy. This astonishing variety of stupidity has to be willfully, voluntarily chosen.

The point being that this is not a good thing.

Nor is it necessary, for Scalia or for anyone else.

I am assured, despite this recent display of apparent imbecility, that Antonin Scalia is possessed of a sharp intellect. I don’t doubt that this is true, but that doesn’t do him any good if he is determined to pretend otherwise by choosing to reject the intellectual, rational and moral necessity of empathy.

But let’s not focus on the negative here. There’s a positive aspect to Scalia’s unfortunate object lesson in achieved stupidity. It reminds us that every one of us has the capacity for a formidable intelligence. Intelligence can be chosen just as easily as stupidity can be. Even more easily, actually, since choosing intelligence doesn’t require you to smother the protests of your own conscience.

Here, then, is how to choose to be smart. Just ask yourself this: What if the shoe were on the other foot? What if I were in that person’s situation?

Those questions are not complicated. You understand them. You grasp how they can be applied. You’re capable of empathy.

And that’s why you — whoever you are who may be reading this — you are more qualified than Antonin Scalia to wear the robes of a justice of the Supreme Court. It doesn’t matter if you’re not a lawyer, not an American citizen, not a high-school graduate, not an adult. If you can understand and ask that question of the shoe being on the other foot, then you are smarter and more qualified than Scalia to serve as a justice and to serve justice.

Congratulations. But don’t get cocky, because if Scalia really meant what he said, then just about everybody is smarter and more qualified than he is.

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