Antonin Scalia: Orthodox Justice

   Well, almost, but not quite. But even “almost” is a high praise for a devout and pious Catholic.

The sudden passing of US Supreme Court Justice Antonin Scalia leaves a void not only on the Court but in the legal world. Scalia was a revolutionary thinker and, even if there are successors and followers, few have demonstrated the knack of writing with his trademark verve, flair and color. Scalia was born for intellectual and legal combat, enjoyed it immensely and engaged in it without hesitation. There has to be few pleasures in life for legal scholars greater than reading a Scalia dissent – pungent, cogent and forceful. My series “The Law and the Law,” which contrasted Supreme Court decisions with the Torah view on the particular cases at hand (all accessible on this site) occasionally relied heavily on Scalia’s dissents for the most articulate and reasonable expression of constitutional jurisprudence.

But “Orthodox”? Consider.

Scalia was a so-called “originalist” who perceived the role of the Supreme Court as attempting to ascertain the original intent of the Framers of the US Constitution and then applying that interpretation to the matter at hand. As such, he venerated the Constitution (and the legal precedents established in the early years of Supreme Court jurisprudence) in the same way that a religious Jew venerates the Bible. Indeed, an analogy can be made between the way “originalists” approach the Constitution and Supreme Court case law to the way faithful Jews approach the written Torah and the Talmud and Codes. Everything is sourced, the system is self-contained, and what is required at most is the application of traditional principles to new situations.

This is the place where one gigantic “l’havdil elef havdalot” is necessary, as G-d’s Torah must certainly be distinguished from man’s (even enlightened man’s) Constitution. Nonetheless, the analogy is still apt, because the intention of the Framers, as Scalia saw it, was that the Constitution serve as the permanent framework for self-governance and the preservation of individual liberties. If each generation saw fit to tamper with the Constitution and drastically transform it according to the prevailing winds, then that Constitution would not survive and the American republic would also collapse, as have other societies with malleable founding documents. Indeed, many of those other societies crumbled in the wake of sudden loss of personal freedoms that had been guaranteed by charters they later deemed obsolete. Those nations usually wound up in the throes of dictatorship.

To revere the Constitution is to make it the anchor of law and governance, and amended only via a rigorous and deliberate process that fully reflects the wishes of an overwhelming preponderance of the American society. Scalia felt it was a betrayal, and downright bizarre, to impose on the Constitution rights, values, doctrines, penumbras, and personal judgments that were simply not there.

He asked, in effect: how can capital punishment be unconstitutional, when such sentences existed when the Constitution was enacted? How can privacy or abortion be a Constitutional right when the former went unmentioned in the text and the latter was a crime for more than 150 years after ratification? How can same-sex marriage be guaranteed by the Constitution when the Constitution does not mention marriage – any type of marriage – at all?

What offended Scalia was not so much the policy implications (those are personal to each judge) but the notion that laws were not being made by legislatures – the people – but by nine people in black robes, all unelected, and all with but temporal existences. He recognized that, whatever his personal view, states could pass laws allowing abortion, as states like New York, New Jersey and California did years before Roe v. Wade; but there is no Constitutional question that is being raised (except perhaps whether the Equal Protection Clause applies to fetuses). Sometimes the Constitution is just silent on a particular issue. The identical reasoning applied to same-sex marriage or other “social” or “political” issues the Court was called on to resolve. He rightly saw the reluctance of legislators to vote on these matters, preferring the Court to do their dirty work for them, as cowardice that was unworthy of this Republic.

Laws should reflect the will of the people, through their elected officials, in almost every case. The Constitution cannot be transformed, distorted or upended simply based on the whims of nine Justices. It is a powerful argument, not only on the merits but also practically. There is no certainty in law – and there should be certainty in law for society to remain orderly and functional – if the personal predilections of a handful of people are routinely substituted for the judgment rendered by the Founders as to how they sought to form a “more perfect union.”

The other side against whom Scalia warred argued that the Constitution must be a living document that evolves with the times, and that it must always reflect the values of the current generation. That is to say, it should cease functioning as a practical guide to governance and freedom and be relegated to the status of an ancient text trotted out for confirmation of a particular bias but never as a definitive expression of an American virtue, ideal, aspiration or source of law.

That attitude explains the current uproar over Scalia’s replacement, an unseemly spectacle that began before his body was even cold. It underscores the sad irony of a president who has regularly run roughshod over his constitutional limitations and a Congress that has failed to assert itself properly in the scheme of checks and balances. Each group, but certainly the political left for the greater part, is seeking to implant on the Supreme Court another politician in the disguise of a legal scholar, someone who can be relied upon to adhere to certain policy conclusions regardless of their Constitutional propriety. That is not what the Supreme Court is supposed to be, and that is not how Scalia saw his role.

For decades, the Supreme Court has functioned in the exact opposite way to that of the Halachic scholar. The Court is result-oriented, where Halacha is process-oriented. The politicians who sit on the Court have for too long decided what legal conclusion they wish to reach, and then buttressed that conclusion with half-baked Constitutional pseudo-precedents or, more frequently, inventing new ones out of thin air. The Justices do not analyze the sources and reach an objective decision. Jewish law – some notable exceptions aside, such as the bias to free an Agunah – looks at the process, precedents, the facts and circumstances and renders decisions objectively, although not dispassionately. That is why the confirmation process today is so contentious; an impartial justice is not being appointed as much as another partisan politician is being elected for life and given a black robe.

The Scalia approach to the Constitution outlined above is quite similar to the way the Halachic jurist approaches the Torah, and here’s the rub: Scalia’s legal antagonists, those who wish the Constitution to be a “living, evolving” document, find their parallel in the non-Orthodox movements who view the Torah from the identical perspective. They also see a Torah that must evolve with the times, a Torah that must adapt to new values and bend to new and more powerful winds. To them, the morality of the Torah is always subject to change because of the new and allegedly “higher” morality as enunciated by each generation of modern man.

Thus, it astonishes, perplexes and vexes a Scalia-like Halachist that the non-Orthodox routinely embrace new values like pluralism, egalitarianism, feminism and others, force-feed them into the Torah system and emerge with a peculiar amalgam of laws and rituals that seem Jewish but only barely so. When the anchor of Torah is disengaged, what is left is a ship of Judaism that is buffeted by the prevailing winds and navigates unsteadily through the treacherous waters of modernity. It can never guarantee safe spiritual passage for any Jew, as history itself proves. Thus, it is no accident that so many Orthodox thinkers felt such a bond with Antonin Scalia; it was not only the policy but especially the process in which we found the symmetry of approaches.

Lest one exclaim that before anyone idolizes the Constitution we should recall that the Constitution permitted slavery (!), we should recall as well that so did the Torah. Of course, neither document (L’havdil, again) extolled slavery and favored its survival but rather recognized its reality and tried to limit and, over time, eliminate, its inherent excesses and potential for human degradation. (For the Torah view of slavery, see the appropriate section in my book “Tzadka Mimeni: The Jewish Ethic of Personal Responsibility” available here or at the top of this page.)

But consider as well that the Constitution contained within it the laborious process by which it could be amended, and in ways that could even contradict the intention of the Framers. An amendment was, in effect, the result of a new Constitutional Convention on one issue. Naturally, the divine Torah has no such provision but the Torah did give the Sanhedrin and the true Sages of every generation the right to make ordinances, and certainly to apply the Torah’s principles to new situations. That is how modern Halachists reckon with electricity on Shabbat, new technology that assists couples dealing with infertility, and sundry other issues – all in compliance with the divine vision. In that way, we adapt modernity to the Torah rather than adapt the Torah to modernity.

I only had the privilege of meeting Justice Scalia one time, and he was as many have described him: warm, gregarious, funny, sharp, and brilliant, and a great raconteur. Read his dissents, if only on the Obamacare cases and in the Obergefell decision to get a true flavor of the man and his mission.

His struggle in the American legal sphere will go on without his mighty pen and intellect. Not surprisingly, our parallel struggle in the Jewish world will go on as well, a struggle that should engage all Jews and in which we hope to reclaim our brethren for the world of Torah and the true service of G-d.

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3 responses to “Antonin Scalia: Orthodox Justice

  1. Very well written, as usual. I would respectfully take exception to one point. In describing the halachic process the point was made that the process is what is important and the conclusions necessarily follow. Then the esteemed rabbi saw fit to take a swipe at the “bias” to free agunot as being a regrettable exception.
    Rav Moshe Feinstein was popularly praised for freeing many agunot especially after the shoah. When he received a case he would take pen in hand and begin his response by writing “this woman is free to marry because…” Then he would put his pen down and study the facts of the case and try as hard as he could to justify his predetermined conclusion.

  2. On rereading the article it is possible that the statement about the bias to freeing agunot that is mentioned is meant as a positive and praiseworthy exception. If that is the case, I agree with the esteemed rabbi.

    • Yes, that is exactly how I meant it. There is a bias in favor of freeing Agunot that dates back to the time of the Talmud. Bear in mind, though, that it has to be supported by the facts and the law, cannot be done haphazardly or routinely, and must be preceded by an adjudication that the woman is actually an Aguna (a Bet Din ordered a Get and the husband arbitrarily refused) and not simply angling for some economic advantage. That being said, Chazal always tried to help Agunot, as did the Gedolim of every generation, like Rav Moshe Feinstein. With that goes the recognition that, sadly, not every case can be resolved, even by the Gedolei Hador, just like not every ilness, sadly, can be cured by the greatest doctors of the generation.
      Far from taking a “swipe” at the “bias,” I am all in favor of the bias, and am happy to have assisted in freeing three Agunot in my career.
      – RSP