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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  • Anonymous

    That’s unfair.  I’m not going to defend Thomas as a person, but he is far more principled in his rulings than Scalia, in that he has principles to begin with.

  • Lori

    This wouldn’t be the first time the sharks played on popular sympathy to get more power for the government, less freedom for you, or cash-grabs for themselves. “Think of the children” — “Remember 9/11” — “uninsured people are dying in the streets!”  Hold on to your empathy, but put on your steely-eyed skeptic glasses for a moment and follow the money and power. Who gets it from the AHCA? Do what’s right and help those in need–but don’t let the bastards in power use your empathy to use you. 

    If you think that Scalia’s views on the AHCA have anything to do with protecting anyone from “sharks” then you need to get the prescription on your skeptic glasses checked because they’re not strong enough to properly correct your steely eyesight.

  • Lori


    I’m not going to defend Thomas as a person, but he is far more
    principled in his rulings than Scalia, in that he has principles to
    begin with. 

    If you consider “what makes the most money for my spouse” to be principles then sure, Thomas has principles. If we’re using any more conventional definition that I’ve never seen any indication that Thomas has any principles to speak of.

  • Anonymous

    Perhaps it’s more accurate to say that Thomas does a more thorough job at rationalizing his prejudices; Scalia usually doesn’t even try.

  • Tricksterson

    Could you really point to any Justice ever who voted against theiir “moral”, which is to say political, interests?  The idea of a politically neutral Supreme Court is as much of a joke as the idea of an objective press.

  • Lori

    Perhaps it’s more accurate to say that Thomas does a more thorough job at rationalizing his prejudices; Scalia usually doesn’t even try. 

    I don’t know. Thomas rarely says anything during oral arguments, consistently votes with the Right block and rarely writes an opinion. If his prejudices are getting a good rationalization I think it’s mostly other people doing it on Thomas’ behalf. Scalia never shuts up, which means that he inevitably says things that are unintentionally revealing. That doesn’t keep people from continuing to buy & spread the lie that he’s an “originialist” or a “strict constructionist” and some sort of great legal mind though. Oy.

  • Anonymous

    Could you really point to any Justice ever who voted against theiir “moral”, which is to say political, interests?

    I’m willing to suggest that some may have, at one point or another. But any of the ‘conservative’ Justices today? Definitely not. Least of all Scalia.

  • Dragoness Eclectic

    I give up; I’m not participating in this “conversation” any longer. No one is interested in discussing facts; they just want to reinforce their own prejudices. If y’all think it’s fine to hate someone based on out-of-context quotes and them not doing everything you think they ought to, whether it is legally possible or not, that’s your prerogative. If you think it is okay to ascribe motives to people you don’t know and hate them based on the imaginary motives you ascribe to them, go right ahead.

    Don’t complain when others do it to you.

  • Lori


    If y’all think it’s fine to hate someone based on out-of-context quotes

    If it makes you feel better to think that an out-of-contrext quote is the reason we aren’t impressed with Scalia’s legal reasoning and that this issue in this case is what is legally possible then you just go right ahead, that’s your prerogative. The fact that you believe it doesn’t make it true though.

  • A Supreme Court judge, regardless of how much they’ll make sure the legal arguments are nicely teed up, is still human and will still be prone to making verdicts based on personal prejudice as much as legal principle.

    Lower judges are just more blatant about it sometimes, and are just as adept at using the legal arguments of the lawyers to help themselves out.

    It is, however, your prerogative to insist that Scalia isn’t going to do that at all, nosirreebob.

  • Anonymous

    If you think it is okay to ascribe motives to people you don’t know…

    Isn’t that what you’ve been doing all along?

    And — flounce!

  • I think being a theocrat should disqualify someone from serving on the Supreme Court. How are you supposed to defend the Constitution when you don’t even believe in it?

  • That’s too bad. They used ’em in Law and Order:UK, and Freema Agyeman always looked kind of cute in them. 

  • If he had principles he’d recuse himself given that he has a clear conflict of interest in that his wife has actively opposed the law he’s ruling on.

  • Anyone who honestly thinks that Scalia is some sort of of unbiased, Constitution loving literalist has never read any of his opinions on any case involving LGBTQ rights.

    On Colorado’s homophobic amendment 2, he described the amendment as 
    attempt by seemingly tolerant Coloradans to preserve traditional
    sexual mores against the efforts of a politically powerful minority
    to revise those mores through use of the laws” (Romer v. Evans
    1996). In the same opinion, he also said “But
    I had thought that one could consider certain conduct
    reprehensible—murder, for example, or polygamy, or cruelty to
    animals—and could exhibit even “animus” toward such conduct.
    Surely that is the only sort of “animus” at issue here: moral
    disapproval of homosexual conduct, the same sort of moral disapproval
    that produced the centuries-old criminal laws that we held
    constitutional in Bowers.”
    (Romer v. Evans 1996)

    There’s also,
    judicial decisions and legislative enactments have relied on the
    ancient proposition that a governing majority’s belief that certain
    sexual behavior is ‘immoral and unacceptable’ constitutes a rational
    basis for regulation” (Lawrence v. Texas 2003).”

    When it’s convenient for him, Scalia is happy to display his “morals” for all to see. He doesn’t claim that the Constitution supports hating gays, he just thinks they’re icky. Any human being is guided by their morals and opinions. But Scalia is blatantly lead by his biases, and to pretend otherwise is a farce.


  • Ramb

    Politically motivated nonsense.

  • Sweetie

    Scalia is a fool, period.