Zoe, the Justice & Me

We are fans of Nina Totenberg in our house; in fact, the fine women of NPR provide us with a frame of reference for our conduct. For example – this conversation has happened here –

Z – “That’s dumb.”

Me – “Zoe! Is that something that that Diane Rehm would say?”

Z – “No, but Roxanne Roberts would.”

So it was not at all unusual for us to listen to Nina breakdown the oral arguments last December in Fischer v. UT-Austin. What was unusual was that Zoe was really listening, so when Nina relayed this question from the bench –

Scalia asked whether the university’s admission of minority students was really beneficial to those students. “There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school … a slower-track school, where they do well,” he said.

She heard it. She heard all of it. Every syllable, and every assumption packed into Scalia’s question. And she asked, because she too can get right to the point with her questions:

“Why are people still racist?”

Driving down a one-lane road, I had some words that tried to be answers –

“Well, honey, some people aren’t as fortunate as us, and don’t get to meet people who are different from them. If they don’t meet them, they don’t understand them, and they might think that because they are different or seem different, they are less….Some people hold onto old ideas, or feel uncomfortable with change….Some people worry for more for others means less for them….Some people aren’t lucky enough to have an education that lets them understand and some people just aren’t that smart.”

But all those words sounded like nonsense to my ears, and she didn’t buy them either.

“But why would HE ask that?”

I had nothing, and I told her so. I said that Justice Scalia was brilliant, had an amazing world-class education, traveled widely, and the people who know him said he was friendly and outgoing, good to his friends, a wonderful colleague, and generous with his time and energy.

“Zoe, honey, I got nothing – he is a Supreme Court Justice. I just don’t know.”

And left it at that, and let the rest of the All Things Considered team tackle the weighty issues of race in college admissions as we drove home. I knew I didn’t give her what she needed, I didn’t like the feeling, but couldn’t give what I didn’t have.

And then Scalia died, and like many liberals I squealed a little at the prospect of Obama replacing him, in fact, I have to admit that there was some glee in my voice when yelled the news to my mother in the next room. Zoe remembered exactly who Scalia was, and her voice was ice.

“oh. him”

And she went back to what she was doing. The man did not even merit her capital letters and that bothered me.  Slate’s most excellent Dalhia Lithwick has a fabulous podcast, Amicus, and she recently talked about Scalia’s tendency to “throw elbows” late in his career.

And that is when the light bulb went off.

Scalia, for all his clear brilliance, was kind of a jerk in his dissents and definitely so in oral arguments and in his public speaking engagements. For example, this is what he said about his colleagues’ work in the Obergefell opinion –

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.

&

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Now listen, I get it, I know how hard it is to be in the minority, and how painful it is to see the size of your minority shrinking (seriously – I am a union-loving, liberal, Democrat from a southern state, see many of us laying around?), but retrenchment is never the solution. That raging? Those barbs? It is just a quick fix. You will feel better for a minute, but your minority will only shrink even faster.  Scalia often said he wasn’t writing for his colleagues, he was writing for the law students; but make no mistake, what he was really doing was disengaging.

So Zoe, honey. Let me try to answer your question again; it was raining, and you know folks just fly on route 108 once they get past the speed cameras…

“But why would HE ask that?”

“Because he was losing. Badly. And he was frustrated. The world had changed. He hasn’t written many majority opinions at all despite being the longest serving Justice in many, many years. Because gay folks can marry. Woman can control their own bodies. People care about things he thinks don’t matter, and don’t care about things that he thinks are very important. Because we decided that we wanted diverse schools.

You know how you feel when you are playing basketball or field hockey, and you aren’t winning, and you don’t see how you can win? You feel mad, frustrated, and sometimes when you feel that way, you make bad decisions? You might hip check somebody, you might fight extra hard for a rebound, and maybe, you throw an elbow? Maybe even at your friend?

Zoe, honey, I think Justice Scalia was scared and mad because he was losing. Sometimes (but clearly not always) racism like what you heard just now, but also sexism, homophobia & xenophobia, are based in fear, anger and confusion about a changing world.

He was just throwing elbows in a game he was losing.”