Judge Not

“The saddest part of his death is that he can’t die again.” “He was a monster.” “I hope he burns in Hell.” And just who was the target of these acrimonious obituaries? If you guessed Osama bin Laden you would be incorrect. Do you think these comments were aimed at Saddam Hussein? You would be wrong again. How about Kim Jong-Il? Once more, you would be mistaken. These comments I read on-line over the weekend were targeted at, of all things, a federal judge.

Associate Justice of the US Supreme Court Antonin Scalia passed away this February 13th. In addition to spawning conspiracy theories and speculation over who will replace him on the high court, his death ignited a firestorm that proceeded to immolate his character and burn his legacy in effigy. That seems a disproportionately harsh response for one of nine judges on the Supreme Court of the United States.

On a personal level, even “Nino’s” colleagues on the opposite side of the political spectrum respected him. He introduced Associate Justice Elena Kagan to his favorite past time: hunting. Justice Ruth Bader Ginsburg, a former attorney for the American Civil Liberties Union, called him a “treasured friend.” She could’ve stopped there. Instead, Justice Ginsburg went on to say, “We were best buddies.”

Why then did his passing unleash such vitriol from his critics? Justice Scalia took a “textualist” approach to interpreting the law. He approached the Constitution as an “originalist”; meaning that that judges should interpret it “as written”. He scorned the view of it as a “living document” that could be adapted to modern times and sensibilities. Based on this philosophy, Justice Scalia did not view the law as a means to advance socially progressive policies. This, apparently, made him a “monster.”

Benjamin Cardozo, himself an Associate Justice of the Supreme Court from1932 until 1938, took the opposite view of a judge’s role. I’m paraphrasing, but Justice Cardozo wrote that a judge should take into account the impact his decision would have on society. While I’m sure most people would agree with that, they should understand there’s a caveat. That’s a great approach to the law, but only IF WE AGREE WITH THE JUDGE’S RULING. I’m sure no one stripped of his/her home in an eminent domain case would agree that the court did the right thing in the interest of bettering society.

Ironically, while not known as a civil rights crusader, I always cite Justice Scalia’s dissenting opinion on the National Treasury Employees Union v. Von Raab case (1989) as one of the best commentaries on the subject ever written. For those unfamiliar with the case, it’s the one that led to mandatory work place drug testing in the US; the only major industrialized nation that engages in this practice. The dissent belongs in the same category of great American orations such as “The Gettysburg Address”.

There is irony in the Government’s citation, in support of its position, of Justice Brandeis’ statement in Olmstead v. United States,277 U. S. 438, 277 U. S. 485 (1928) that “[f]or good or for ill, [our Government] teaches the whole people by its example.” Brief for Respondent 36. Brandeis was there dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example of vigor and enthusiasm in combatting crime, but condemning its example that “the end justifies the means,” 277 U.S. at 277 U. S. 485. An even more apt quotation from that famous Brandeis dissent would have been the following:

“[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”

Id. at 277 U. S. 479. Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us — who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

(Retrieved from https://supreme.justia.com/cases/federal/us/489/656/case.html#679 3/21/15.)

A judge is not an elected official. (S)he is not accountable to an electorate or the American people. Political and social changes should emanate from the will of society carried out by elected representatives accountable to the people they serve. As Justice Scalia himself observed,

Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

            His critics could use his judicial career as evidence of just how right he was.