213 year ago, a simple dispute over the appointment of a justice of the peace changed the way our government, and the government of countless nations to follow, worked. The Supreme Court, in its infant stage, ruled that Secretary of State James Madison broke a law by refusing to deliver an appointment by President Adams of William Marbury to the position of Justice of the Peace of Washington DC. The court then did something very different. Instead of ordering the appointment, it declared the law that was broken, The Judiciary Act of 1789, was in fact, unconstitutional-a word no one had really ever used before. And since, the idea of judicial review, the doctrine in which an un-elected, independent body has the power to interpret and eliminate the laws passed and signed by democratically elected officials, if they deem them unconstitutional, has bound our government to our governing documents.
There are nine of these men and women-mostly men. They vote on cases. They debate. They hear arguments. They ask questions-some ask questions. Justice Clarence Thomas has not asked one during a hearing in 10 years-not a joke. They decide, first individually, then as a body. And since the idea of judicial review has existed, the debate on how to interpret our great document has broken along the same lines just about any interpretive debate must-conservative, or liberal. Some believe that the Constitution requires strict interpretation, “constructionism” as it’s called. Others believe that a new law must be proven unconstitutional, instead of assumed so because it wasn’t written into it’s original articles or subsequent amendments. If it sounds like a debate about religion, it’s because it is.
So how does history view these justices when they pass? After all, they’re appointed for life, so they often do pass, while in office. Well, for the most part, history doesn’t view them. Except for a few-the first woman, the first black man etc.- we forget them. We remember their massively important opinions that shape the trajectory of our social progress. We remember the cases, not the men. Brown V. the Board of Education, Plessy V. Furgeson, Dred Sott V. Sandford-these are the cases we learn in civics and American history classes. They decide existentially important issues like slavery, voting rights, segregation…gay marriage.
Besides the names of the cases, there is one thing we do remember though. When we look back, through the generations at the conduct of our court, we remember when someone put pen to paper for all history to remember, in service to excluding others. We remember Justice Henry Brown in Plessy V. Ferguson, writing an opinion in favor segregation.
“If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”
We remember Chief Justice Roger Taney’s words in his majority opinion in Scott V. Sandford.
“But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration (of Independence)…”
History is not kind to them. Nor should it be. Because these men have made the fatal mistake of valuing the document that governs the people, over the people. We do this when we hide behind the Constitution to exclude people from society. And so, generations from now, history will remember Justice Antonin Scalia’s words. Words in a dissenting opinion that would ask that we exclude gay’s from the society of family life. Words that would weaken the hand of citizens in the democratic process and strengthen the hand of the wealthy and corporations, in service to a strict interpretation of a document. His words will be his memory. I can’t tell you a single thing about Justice Taney or Justice Brown, other than their words of exclusion. Because history remembers what they stood for. And so it will be with Justice Scalia.
History also remembers another man, whose ideals changed the trajectory of how man is governed on earth. As a man, he was a flawed, slave owning aristocrat. His words though, unlocked the potential of mankind in the name of equality. And when it comes to how we ought to interpret the intention of those who crafted our governing document, I take my lead from him. In 1816, Thomas Jefferson wrote:
“But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
I have no knowledge of the late Justice Scalia as a man other than what I’ve read in his opinions and brief anecdotes from the media. He served his country as a conservative voice. And conservative voices are important. They require that progress is organized and thoughtful. They demand consensus from progressives and moderates to move off their pedestals together. Conservatives are good. But you can’t hide behind conservatism when you try to exclude people. Eventually, the world moves past you. And your words endure. History has a knack for shining a light on your message. Generations from now, someone somewhere will be digging up Antonin Scalia’s words, and wondering how we saw the intent of our founders in them. History, like Justice Scalia, is a harsh and demanding judge.