Your attack on the late Justice Scalia … True or not, you wither if you’ve never read a Scalia opinion

Posted on 02-19-2016 by
Tags: LIT , Top Stories , Supreme Court , Antonin Scalia , SCOTUS


A few hours after Justice Scalia’s passing, I saw a tweet describing him as “racist” and “prejudiced.” This might not be fair, considering the old adage against speaking ill of the dead, but our public figures will always suffer post-mortem stones. Consider Alexander Hamilton, who took it on the chin long after his passing:

For many years after the duel, Thomas Jefferson, John Adams, and other political enemies … [took] full advantage of their eloquence and longevity to spread defamatory anecdotes about Hamilton, who had been condemned to everlasting silence. Ron Chernow, Alexander Hamilton 2 (2004).

Granted, the adage against “speaking ill of the dead” may be naïve to some. If you think so and you feel the need to speak out against Scalia, your criticism might rest on the eye test. Here’s how one Georgetown law professor saw Scalia:

He bullied lawyers, trafficked in personal humiliation of advocates ….

Assuming you’ve seen Scalia in action, this is fair, regardless of what I might think.

But if your tactic is to criticize Scalia’s thinking, there’s an unfairness in having never read his opinions. At the very least, read one … just one … of his Supreme Court opinions.* Lincoln said, “I don't like that man. I must get to know him better,” and reading a Supreme Court opinion is the best way to know better the justice you don’t like. The Supreme Court is the only branch to offer this infiltration. As Justice Byron White noted:


And Not Just Scalia

Maybe Justice Ginsburg is your punching bag. If you’ve never read her opinion(s), then you’re punching at air. Your personal dislike might be justified, but if you’re going to assail somebody for their opinion, you owe it to them (and to yourself) to actually read their written opinion. To know the “whys” behind the “who”.

Yes, Supreme Court opinions are complex, formal and heavy with legalese. But if you’re living and dying by the gist of these things, you’re a little weak kneed in your fight. If you won’t struggle with complexity for the sake of your opinion, then you’re exactly what John F. Kennedy spoke of:

Too often we hold fast to the cliches of our forebears. We subject all facts to a prefabricated set of interpretations. We enjoy the comfort of opinion without the discomfort of thought.

At the very least, attempt to read a Scalia opinion, a Ginsburg concurrence, a Roberts dissent …. They can be difficult, even for the best legal minds, but in trying to understand the justices before you attack – even a failed understanding** – therein lies integrity.

To get you started, here’s a few shortcuts for better understanding the justices and their opinions:

· Five notable dissents from Justice Antonin Scalia

· Ruth Bader Ginsburg's Greatest Hits

· John Roberts’s Court

· Sotomayor’s Notable Court Opinions and Articles

· The 4 Principles Guiding Kennedy’s Majority Opinion Supporting Gay Marriage Recognition

· Clarence Thomas, gay marriage and the Declaration of Independence

· Justice Breyer's dissent: Death penalty may be unconstitutional

· Five notable 5-4 decisions by Justice Alito

· Elena Kagan is rewriting the role of a Supreme Court justice in American democracy

*Of course, the same can be said of Scalia’s champions – read his opinions first. But for the time being, those championing Scalia post-mortem receive my leniency for “speaking well of” the dead.   

**You’ll sound a heck of a lot more enlightened if you can say, “I read [insert Supreme Court opinion], and [insert justice] was wrong in writing ….”

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