Like many people, I found out about the death of Antonin Scalia through social media, a Facebook chat to be specific. “DUDE! Scalia may be dead,” my friend messaged me." After a few minutes of silence, my friend returned, in all caps, once again, to proclaim, “HE’S DEAD!!!!!!!!!!!!!”
While Scalia’s unexpected death provoked a pseudo-constitutional crisis among the right wing, it provoked an existential crisis in me. I felt simultaneously happy, relieved, hopeful and guilty. He’s someone’s father! Someone’s husband! RBG’s bestie and opera partner! Even worse than what I felt was what I wanted to do! “OMG!” I typed to my friend. “Would a listicle of Scalia’s Worst Quotes be the worst?” Ironically enough, my friend’s verdict was Scalian; swift, punishing and punctuated with hyperbole and exclamation points: “NO! YOU MUST DO IT!” F&*( DECORUM!”
A woman of checks and balances, I sought counsel from other sources via other means of communication. I skyped an editor to ask for her ruling on the issue. Her judgment was Kennedyian and moderate: She urged me to wait 24 hours, reminding me that “dancing on people’s grave [was] not a good look.” When I texted another friend, a journalist, he concurred with the editor, writing, “I wouldn’t celebrate it.”
The majority, it seemed, had ruled. It would be in poor taste and bad judgment, an ethical breach, to openly rejoice about Scalia’s death.
I had no grounds for appeal. The decision was final… or so it seemed.
But then, I felt a flickering of hope, as I saw a flickering of light from my cellphone. With bated breath, I watched as dots of i-message judgment popped up on my screen. The journalist, it seemed, hadn’t finished his ruling: He thought I could make the argument that his death may have “saved the planet” with the court now unlikely to strike down Obama’s far-reaching emissions plan. “He was a bigot who made millions of people suffer.” With this Breyersian analysis, my friend granted my piece, which I had planned to kill, a last-minute reprieve.
I decided I’d “nudge,” if not totally violate, decorum. I compiled some of the late justice’s most “memorable quotes.” I can’t say I’m proud of my word choice. The cop-out-est of adjectives, “memorable” allowed me a convenient vagueness. But, in all fairness, Scalia’s equal opportunity bigotry made it hard to come up with a headline-length title that did him any justice: “Scalia’s most homophobic and/or sexist and/or racist and/or savage decisions, quotes or off-the-cuff statements” is a mouthful.
The guilt I felt over turning Scalia’s death into shareable content started to dissipate as I sorted through the bottomless pit of sexism, homophobia and racism that was his legacy. His cruel and draconian incarceration opinions, which had caused so much suffering, now offered me comfort, solace, conviction and a sense of righteousness.
But what really emboldened me was his near fetish for death and the death penalty. Not only did Scalia defend capital punishment for youth and people with mental disabilities, he also has famously said, out loud, that it wasn’t unconstitutional to execute the innocent as long as they had a fair trial: “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Why should Scalia, who was so brazen about his disregard for human life, even innocent life, deserve respectful or solemn commemoration in the public sphere?
Scalia wasn’t merely defending the death penalty in theory as an acceptable and appropriate punishment for guilty people; he was defending it for the innocent if it came to that. And, as one of the nine people on the Supreme Court, his ideas contributed and buttressed the state-sanctioned murder of innocent people.
Surely, whatever deficit of empathy I revealed paled in comparison to Scalia’s chasm of compassion. If he could sleep soundly with the deaths of innocents on his mind, who was I to feel guilty about a death I had nothing to do with. It seemed wrong. And also, profoundly un-Scalia-like. And that was when it occurred to me: What better way to honor the late justice than by asking #WWSD? What would Scalia do? The answer was obvious: He’d react to the loss of human life with heartlessness, cruelty and adherence to his own conviction.
To be fair, this issue of how to mark the passing of the wicked and depraved does not belong to Scalia alone. The question of public celebration of death was raised when Osama bin Laden was assassinated. I'm in no way comparing Scalia and bin Laden, but the contrast between the two sheds light on how and why society determines norms around mourning. I did not celebrate the death of bin Laden because we have laws to deal with outlaws and trials to teach defendants and the public about the nature of crime and punishment. But most Americans rejoiced at the death of a man who masterminded an attack on the United States that killed 3,000 people.
The truth is, these norms are based on politics, vested interests, an unquestioning acceptance of the status quo and powers that be. They are not based on ethical principles or moral absolutes. How many leaders have ordered the killing of thousands of civilians? When the leaders are ours, we call it collateral damage. When the leaders are our enemies, we call it murder.
There are, of course, rules of engagement and the rule of law. And Scalia isn’t technically a murderer. As a judge, he gets to implement state-sanctioned murder, also called the law. But as any student of civil rights history knows, the issues of legality and justice are separate. What Martin Luther King did was illegal. But it wasn’t unjust. What Scalia did may have been legal but it was unjust. And because he was a judge, Scalia had the power to codify his own murderous behavior, enshrining it into the law.
But let us return to the question of whether the late justice, despite his numerous crimes and offenses, still deserves to be mourned with some level of decorum. After lengthy analysis and hand-wringing, I can only conclude: hell no! It is hypocritical and sanctimonious to require anyone to grant Scalia the compassion he relished denying others. Mourning itself becomes distasteful and disrespectful when the person who has died was not simply a flawed person or a misunderstood person or a deeply misguided person, but a person whose life and legacy were built on the pain, damage, humiliation and injustice he caused others and our world at large.
When we decorously mourn Scalia, or other powerful and public figures like him, what are we doing to the family members and loved ones of those people whose appeals Scalia voted against? Is there not something morbid about mourning a (state-sanctioned) murderer?
If only our culture cared as much about the lives of the living as it does the lives of the dead, or the unborn, for that matter. The culture of decorum that elevates a person’s life after death is, in some way, a perfect corollary to the culture of “life."
Our tradition of mourning, rooted in religion, has codified centuries of war and pillage. Paying homage to people once they are dead doesn’t absolve us from killing them. Death cannot and should not change history. Solemnifying and ennobling the act of leaving the mortal sphere has the dishonest and painful effect of whitewashing the actions of those who were hateful, destructive, or worse. The damage wrought by people like Scalia will long outlive them.
Rest in peace can’t undo a career’s worth of damage; and pointing this out is not an act of disrespect. Ignoring it is.
Unlike Scalia or our leaders, however, I don’t believe the desire for vengeance should be embraced on a legal or policy level. I know Scalia was very Catholic in his thinking and siring (of nine children). And I, on the other hand, am a godless Jew. But when I heard about Scalia’s death, I immediately thought of a Christian hymn, of all things. Written in 1869 by the American Baptist minister Robert Wadsworth Lowry, "My Life Flows on in Endless Song (How Can I Keep From Singing)" was amended by Quaker Doris Penn, popularized by the folk singer Pete Seeger and, later, the new-age singer Enya. Since I’m not a strict constructionist, I will quote the verse that Penn added nearly a century after it was first written:
When tyrants tremble, sick with fear,
And hear their death-knell ringing,
When friends rejoice both far and near,
How can I keep from singing?
In prison cell and dungeon vile,
Our thoughts to them are winging;
When friends by shame are undefiled,
How can I keep from singing?