The Majesty and Irony of Antonin Scalia

Associate Justice Antonin Scalia died this past weekend. By now he either knows that his lifetime of toil as a dedicated Catholic was worth it, or he doesn’t. One would be the majestic culmination of earnest belief, the other cruel irony. During his time on the nation’s highest court he doled out both in nearly equal measures. He was and will likely remain a towering figure among American jurists. No one before him was quite as engaging during oral arguments. Few before him approached their duties with such intellectual rigor or passion. It was the latter that most often got him into trouble and at times alienated him from his colleagues and much of the country. He was not afraid to call other justices’ reasoning “ridiculous” and their consideration of certain questions “silly,” as he did in a dissent of PGA Tour v. Martin that is more entertaining to read than the game at the center of the case.

For the Court’s staunchest “originalist”—the idea that the Constitution must be read for only the meaning it would have had to the 18th century framers—it must have been a different kind of irony to commit three decades to the high calling of judicial review, a duty that is nowhere to be found in the Constitution’s Article III. The concept of judicial review stems not from the Constitution, but the famous case of William Marbury, a jilted appointee of President John Adams, whose commission James Madison, the new Secretary of State under Jefferson, refused to deliver. Alas Marbury v. Madison did not help poor William attain the high office of Justice of the Peace for the District of Columbia, because the Marshall court found the Judiciary Act of 1789—the basis of Marbury’s complaint—to be unconstitutional. It is that case, not the original text of the Constitution, that allowed Justice Scalia and his “originalism” to make rulings on the Constitutionality of law. It would seem, as Justice Scalia argued in relation to many other issues, that if such an important duty was meant for the High Court, the framers would have explicitly stated as such. Yet even when they did make explicit statements, the justice often found them superfluous.

In an opinion with long-lasting impact to one of the most divisive issues of our time, his textualism could not bring him to conclude that the representatives of the people of the District of Columbia could limit the licensure of weapons in the city on the basis that the gun owner was not a member of a “well-regulated militia.” Instead he argued that the prefatory phrase in the 2nd Amendment simply stated a purpose; it could not alter the meaning of the operative clause that followed. It was a brilliant piece of logic that may or may not have captured exactly what the framers intended.

Scalia’s originalism often put him at odds with a changing America. In every sense, that was exactly the point. In comments about the rising acceptance of gay marriage, he once intoned that at the time the 14th Amendment was ratified every state had laws on the books defining marriage as between one man and one woman. “That should settle the matter,” he said. One can take originalism too far, and Justice Scalia often did. At the time of the ratification many states had laws respecting slavery, and no woman could vote. Should such facts also settle those matters? To attempt a critique he would likely find worthy, it would be preposterous to think so.

Whether or not originalism can stand remains to be seen. It sets itself against the entire course of human history, a history that confirms the norms and standards of all societies change over time. It finds itself at odds with the very nature of the law, a system built on the concept of emerging truths that eventually become the canon already laid down. Perhaps most fatally, while originalism may keep a judge, as Scalia often noted, from declaring, “the law means what I say it means,” it cannot prevent that same judge from saying, “the framers meant what I say they meant.” At some point, a decision becomes a balance between the objective and subjective. That is the reason confirmations have become contentious and why we now, most unfortunately, describe an explicitly nonpartisan body as a “conservative” or “liberal” court. If our three-branch system is to remain in the form we know it, we simply have to accept the humanity of judges. His arguments were tightly reasoned and supremely logical, the bounty of a deeply elegant intellect, but not even the principled Justice Scalia could avoid our very nature. Even so, for the Court’s most outspoken conservative, one must say he was far more a jurist than an ideologue. But to conclude so, one must also acknowledge that his colleagues are deserving of the same understanding of their balance between intellectual duty and personal philosophies.

It will take a while to understand the full context of Justice Scalia’s legacy. It seems fairly clear even now that he will be regarded among the giants of the Court. That passion, even in dissent—and possibly because of it—will likely stretch his influence into the next century. He wrote mostly for a future that would eventually return to what he considered a deeper clarity. One that perhaps would be less willing to breathe life into a document he once described as “dead.” He hoped for one that would stop asking what the Constitution is supposed to mean in the present and would simply ask, what did it mean. Amazingly to him, it was a radical concept.

That case back in 1803 set modernity and the supremacy of law on a collision course when Marshall’s court first stepped off the written pages of the Constitution. That it eventually led to the job for which Justice Scalia will be forever remembered is altogether majesty and irony. It somehow seems fitting for an uncompromising conservative who spent New Years’ Eves with his great friend and the court’s most liberal member; for someone equally at home in the formality of the High Court and Washington cocktail parties where he regaled attendees with raucous tales. For his commitment to originalism, and for his verbosity and wit during oral arguments, the justice was something he never would have claimed. He was, by nearly any measure, a revolutionary. With all the conservative bluster he could summon, he would publicly disdain the label. Privately though, I have to think he would almost certainly revel in it.


Red Cards, Bat Flips, and the Meaning of it All

In the final game of an ALDS last October, Jose Bautista hit the game-winning home run and drove in two other batters, leading his team to victory in the series. The story the next few days wasn’t about all that. It was about how he flipped his bat before running the bases. Did he disrespect the game? Was he just over-exuberant? Did he deserve to celebrate that way given his all-star career and his first post-season in twelve years in the league? Maybe. The pundits pondered. The blogs lit up. Twitter was all aflutter. Here is what I will tell you; the flip of a bat matters. And it matters when football stars prance around the end zone or stand over a player they just hit in taunting bravado. It matters because of things with far more gravity than one pitcher’s idea about a game, one sports star’s ideas about his place in that game, or a host of commentators with their own sense of the history of our American Pastimes.

In the fall I helped coach my son’s recreation league soccer team and witnessed something I had never seen. A player, ten or eleven years old, was sent off under a red card for insulting the referee, a volunteer no more than sixteen or seventeen himself. As the player left the field, he made an obscene gesture and stuck his tongue out at our sideline. That sideline was led by a former professional athlete, the NFL’s leading scorer of all time, who had volunteered to coach our sons’ team. Where does a kid learn that? In the Georgia Dome I watched in sadness when the clock finally ran out on Buford High School’s latest attempt to become state champions. I was sad for our team, but perhaps more so because I saw drum majors and players from the opposing team sprint across the field to taunt the Buford Wolves’ sideline. Was that exuberance? Did they somehow earn that right?

A couple of seasons ago in a different state I coached the youth recreation league’s most naturally talented player. This kid was a fan of perhaps the biggest soccer star on the planet. He wore his jersey to practice. He watched him on TV. He tried to play like him, and when he scored his first goal, he acted exactly like him. Arms out, running around the goalie box, “flying” around the defenders he had just beat, drawing attention only to himself. Before the ensuing kickoff I pulled him to the sideline and said something like, “this isn’t just about you. I don’t want to see that again. Shake your teammates’ hands and thank them…then line up and play some soccer.” It was a season of talks like that as I attempted to help him understand sportsmanship in the context of his uncommon talent.

Now, I have never been a professional athlete. I played tennis in high school. Number eight on six-man roster. I vied for a national title at the collegiate level once. In skydiving. We were disqualified on a technicality, the first loss for our school in that competition since we began competing. You could say I don’t know a lot about excellence in athletics, but I have a pretty good record in another form of competition. I spent twenty-five years flying fighter aircraft all over the world. Fighter aviation is a “sport” where if you lose, you don’t ride a charter airplane home and await the next season. You end up under a white stone overlooking the Potomac.

Anyone who has spent any time with fighter pilots—or who has seen them represented in film—would not immediately think of them as models of humility or teamwork. Fighter aviators, like professional athletes, are driven personalities. They weed out weakness. They do not suffer mediocrity. They despise incompetence. And they talk and act like there has never been anyone better…at least in the bar. On the “field,” they are, for the most part, deadly serious about their craft and completely transparent about their own shortcomings. Fighter combat is not a place for end zone dances, post-goal knee-slides, or throwing of bats. It’s a place to fly, fight, then stoically consider that on any given day, and despite the necessary fiction that there is no one better, things could go much differently.

In such a cauldron of competition and finality, I once worked for a master at changing the culture of an organization. His idea was simply to do things better than anyone else and let the external measures of merit do the talking. He called it “quiet competence.” When you do things right, he said, you don’t need to talk about it. Pretty soon others just start noticing. Then they want to be a part of it too. It works. You’ve seen it on professional ball fields at times, though certainly not often enough. It’s the batter who sprints out a fly ball he knows will be caught. It’s Barry Sanders crossing the plane and simply placing the ball on the ground before jogging back to the sideline. It’s the act, in athletics or business or fighter combat, that says there is nothing more to say. It is a way of being that says anything else I could possibly do here would only sully the moment.

There is something formidable about those kinds of acts. They are somehow simultaneously more respectful of a competitor and more foreboding about what is yet to come. No one could ever doubt Sanders’ dedication to his profession, his will to win, or his drive to employ what some believed were supernaturally bestowed talents. We should respect those acts far more than the shallow theatrics we see in athletic celebrations. Why do we cheer the high-stepping from 20 yards out? Why do we condone the taunting, the dancing, the autographing of a ball immediately following a score? They might make good entertainment, but they make very poor examples for relating to others in our everyday lives.

The flip of a bat matters not because it is done by a megastar at the top of his field. It matters because it is done by a man who is, in the end, no different than I am. No different than my sons will one day be. I will never have the chance to hit the winning home run in the ALDS. I didn’t win a national championship or a state tennis championship. It turns out I had other skills. Sure, I have done things Jose Bautista will never do, but they will never put my bust in a place like Cooperstown for generations to see. What drives me now is my knowledge that our children will also do things he will never do. Maybe my sideline talks with young players will be remembered. Maybe they won’t. I know this. My young soccer player appreciates that soccer star’s skill, but he doesn’t respect him as an ambassador of his chosen sport. He would prefer he didn’t represent “the elegant game.” Perhaps at his young age he is capable of more nuance and wisdom than a thousand sports writers. If so I might find some solace that I am doing something right. If so it is because the flip of a bat doesn’t have a damn thing to do with respect for the game or exuberance or entitlement. It is because in moments of triumph and loss we show how we deal with our own talents and flaws. Ultimately how we act in those instances shape how we deal with each other in a society we alone can build. They teach our kids, along with hundreds of other everyday observances, the value we place on attention-grabbing flash or the substance of quiet competence. Yes, my friends, the flip of a bat matters a great deal.