Tuesday, February 16, 2016

On Scalia: The Motivation For Evil Is Not Its Vindicator

The death of Supreme Court Justice Antonin Scalia has resulted in some people looking to praise him even though they disagreed with him generally. I find this hard to understand because it gives more weight to a person's personality or stated purpose for something rather than the actual results. It's similar to people who are supported with the claim, "At least they fought for what they believed in," which is not a virtue--not by a long shot. People can believe literally anything. Literally anything. What a person is fighting for is what should be judged, not the "integrity" used to do the fighting. With this logic, the absolute worst of humanity's behaviors can be justified or mitigated by "believing in them" enough. What a truly disgusting ideal.

There are so many issues on how to see any particular judge or justice that it's impossible to outline them here. But one of the things I remember about Scalia when I've read some of his rulings and writings is a fairly consistent claim that his personal views are not interfering with his conclusions. It seems to me that someone who makes such claims as often as he does is actually doing what he's claiming not to do. (The "the lady doth protest too much, methinks" line comes to mind as something similar in play with him.)

Perhaps I can wrap up some other thoughts more briefly with a reference to the iconic blindfolded Lady Justice. The image is to convey the supposedly laudable ideal that justice should be "blind." I find this to be a completely wrong-headed idea, at least given the way it's taught. What would be much better is an image of Lady Justice with a patch over one eye in place of the blindfold and the other eye looking carefully through a magnifying glass Sherlock Holmes style. No law can ever be written that would cover every action in which humans engage, and taking a close look at the details of any given case is utterly necessary for justice to be considered in play. To be purposely blind to this fact is to be anti-justice, in my opinion. No two actions are ever identical and will in a large number of cases have unforeseen and relevant circumstances to consider not covered in the law. The idea of "extenuating circumstances" is part of this problem, but it doesn't nearly cover everything, and so are legal contradictions that have to be sorted out regularly.

Why is this important? Because Scalia was one of those people who claimed that original intent was paramount. This might seem like a good idea at first, but as mentioned above, no laws can ever be written that can cover every relevant element. There needs to be some method of adaptation within the judicial system without having to rely on legislatures to overcome their political and personal handcuffs. Judicial discretion should be in play, but not if it's based on trying to figure out how 18th century life lines up with 21st century life and then trying to guess what people who have been dead for over 200 years would think about it. We should not be giving power over our lives to those who are dead, just like we should not want power over the lives of people who come centuries after us. It's nuts to think that's rational.

For this reason (and what I see as Scalia's twisting himself into mental knots in order to make sure people are treated as outsiders to the very judicial processes meant to protect them), I don't see Scalia in a positive light. To do so would be an enabler in the same way psychologists use that term. What he's done has harmed millions upon millions of people and that's not nothing. Abstractions do not exist in the law; real people have to live with what's decided. If anyone wants to claim that he's just doing what he thinks is best, I see that claim as untenable as saying the same thing about Jenny McCarthy, those who burned witches and sacrificed virgins, and those who claim slavery was something positive for slaves. Some people have claimed Scalia was a "nice guy" among similar claims. A person's temperament when ruining the lives of uncountable millions of people is not a valid mitigator of evil. The old story about a wolf in sheep's clothing is entirely relevant here.

Finally, what I think is a messy but more level-headed alternative is to set up cases with a checks and balances system that mirrors the House and Senate, with a jury being the "House" and the judge being the "Senate." Both the jury and the judge would have to agree on the outcome of a case for it to "pass" and agreed upon sentence be imposed. This way judicial discretion would be mitigated with any potential biases put in check, and the jury wouldn't be able to be too biased either. It would result in a lot fewer guilty verdicts, but I think the overall outcome would be much better. If a ruling(s) ends up being offensive enough, the legislature can pass laws directly on point to the issue(s) in play.

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