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On Justice Scalia's Passing, by Rabbi Joey

At a dinner party attended by law professors at the University of Texas over thirty years ago, I can recall their worrisome chatter about moves within the Reagan administration. In particular, they mentioned one specific potential appointment to the United States Court of Appeals for the District of Columbia Circuit. At that time, I was unfamiliar with Antonin Scalia, not only the name, but the pathways to power within the court structure – but I remember the way these theorists (one of whom would go on to become a respected authority on Constitutional law) expressed what amounted to horror, should he be a judge on the Supreme Court.

Scalia is dead and it’s hard to come to grips with the fact that the reign we feared would influence our primary notions of democracy is finally over. He was only fifty years old, imagine that, when he was confirmed to the Court, and we shuddered to imagine a larger-than-life figure at the center of government in perpetuity, ruling on everything from reproductive rights to Guantanamo to gun rights to affirmative action. He diced and sliced up prior jurisprudence not so much savagely as with the delicacy of a fine restaurateur who caters to the best clientele. It’s not accidental that we think of him in alimentary terms – sitting down and tying a bib around his neck, leaning into a plate of linguini. He is center stage as he savors the meal, and a Puccini aria is coming over the speaker. He is corpulent like the way we imagine emperors when we are kids, and his scant hair is slicked back by perspiration. His sartorial taste is impeccable – he wears a dark blue suit and always a colorful tie.

There is something remarkably gracious about his demeanor that is both endearing and off-putting. Whether he is seated with his conservative colleagues on the bench or with his friend Ruth Bader Ginsburg, he regales them with his observations about American life gone to hell. He loves life’s virtues, is a keen appreciator of the arts, a renaissance man. He goes on eating and looking amused by what passes for civilization all around him. He devours his solicitors at court, imbibes the scene, and willingly crafts his rejoinders like a man comfortable at the choicest table, the kind who knows exactly what he’ll have in the next course and how he insists it will be prepared. He chews a bit more, twisting his fork through the pasta, then pauses to emit a sarcastic remark. The lawyers, like waiters, know their place and they comport themselves obsequiously, serving up precedent and extrapolating here and there, suggesting something not too salty and leaving off a bit too sweetly.

This scene became interminable, and we longed for it to end. His fierce intellect was the equivalent of a modern-day ruthless weapon wielded in the palaces of government. Remember, as I said, he was relatively young when he sat down in one of those early Supreme Court photographs. And, I’m sure that only a week or two ago, we considered the possibility of him living into his nineties.

His opus is of formidable importance, and Jeffrey Toobin elegized him as having an impact comparable with that of Oliver Wendell Holmes (though it was certainly a different kind of impact). Scalia made the Court a locus of power beyond the White House or Capitol Hill, and he turned it in another direction that can only be compared to an ocean liner reversing its course at sea.

No wonder Republican candidates running for president are squirming and demanding, now that their emperor has collapsed while hunting, that Obama cease from nominating a replacement. Scalia, in the strange words of Marco Rubio, understood the primacy of the United States Constitution, as being, in his words, “not a living, breathing document." We should consider how this remark was intended to mean something, perhaps surprisingly, more consequential than it sounded.

First, a midrash… When Moses ordered Bezalel, the master craftsman of the Tabernacle in the desert (with which we occupy ourselves during these weeks of Torah reading) to design the sacred furniture, he asked him to make the Ark, the candelabrum, tables, and other accoutrements before building the actual exterior building. This confused Bezalel – and he retorted: “Should I make all the auxiliaries to the structure without providing the structure itself first?” A person builds a house prior to putting furniture in it, right?

In order to understand Antonin Scalia and the way he redirected American jurisprudence, we ought to consider Bezalel’s question. In the midrash Moses is quietly appreciative of his protégé’s approach, but the divergence between them is not entirely resolved. Think about it. . .  The design process has a lot to do with configuring the elements of our environment we interact with on a daily basis – the ancients understood this interaction in terms of contagion. Over time, those objects get repositioned and they impinge upon our character. We touch them and they touch us. We are moved and they are moved, and at the point we are capable of imagining a superstructure (a cosmos, universal truths), it proceeds from the tiny encounters that take place within it first.

Scalia was known before he came onto the Court as a strict constructionist, an adherent to the principle that the intentions of the original framers are paramount, in terms of interpreting the law of the land. Above all else, within a constructionist approach the text takes precedence to subsequent ideas lent currency by social trend and innovation. What intrigues me is the epistemological basis for this kind of thinking about the legal process – and how this “non-living, breathing” (it even sounds, suspiciously, like a Golem of sorts) entity as a concept distorts what we know about the uses of language and the abuses of history.

Let me explain. How are we to declare with certainty what the writers of the Constitution had to say, in terms of applying everything they addressed to worldly concerns that would arise later? How are we to impute their reasons for weighing in one way or the other – or, for that matter, to think of those reasons as our own? For example, given that the founders of this country inhabited a mindset in which the slavery of Africans was a perfectly acceptable and fundamental economic assumption, how might they imagine the burdens we bear today in rectifying the harm done to black generations? What justice might they even be capable of envisioning as affirmative action? Or, of course, there are the multiple contemporary conversations about the right to bear arms and how that colonial context does or does not pertain to what goes on in Chicago’s Cabrini-Green projects or on college campuses across America.

Of course, the writers of the Constitution were not clairvoyants, and yet their project, in a theoretical way, motors a hermeneutical enterprise that is vast in scope. The art of interpretation depends on how we look at historiography, in terms of discovering what people who wrote a long time ago felt to be true and just, in the abstract, about human relationships and society. The historian weighs her evidence – speeches, pieces of legislation, deeds of trust, but is left to conjure personalities with flaws not unlike our own. To imagine, therefore, that the founders were any different from today’s power elites, for better or for worse, and then to apply that reasoning to contemporary challenges is a fool’s errand.

So does the Tabernacle precede the exquisite objects that inhabit it?  And are we, then, as postmoderns, left to condemn every attempt to construct a world that doesn’t take the its constituent elements seriously? Moses tacitly enjoyed Bezalel’s experiment, but maybe he intuited a problem with his junior’s originalism.

As Jews, we know a bit about the long arc of interpretation. There are the philologists like Abraham ibn Ezra, who aspire to translate words in terms of its grammatical sense and syntax. As soon as we get on the highway of syntax, however, linguists will admonish us – there are voices (active and passive) and moods (jussive and subjunctive). The performative nature of speech, in itself, is a complicated affair, not only describing a scenario but conditioning change. This is why my teacher Uriel Simon made the case that Rashi was a superior commentator to the others, in terms of explicating not just the plain meaning of biblical language (pshat), but the interpretation that searched behind what I would call the event of the text (drash). In bringing a particularly salient midrash to our attention, as a way of demonstrating where the text was going, Rashi sought a life for language beyond its original iteration. Or, thinking about it differently, he sprung into action a range of meanings – a flux of interpretive possibilities – at the point of origin.

In this sense, we can understand, as Jews, our discomfort with Scalia’s constructionism.  Law, for us, has always been a struggle between original texts and social contexts, one mitigating the absolute authority of the other. But it’s more subtle than that. Our rabbis were fully involved in the art of textual emendation, in the name of lending credence and legitimacy to the integrity of social politics (what they called minhag, custom). This was more than a blessing bestowed upon the contemporary scene – it had the benefit of tying what could just as easily be passed off as fad with ancestral wisdom and continuity.

Scalia is dead, as news captions on many outlets inform us – the way we imagine being told in the days of yesterday’s emperors. I imagine he was a lovely guy, an erudite teacher. But I feared him for his disgust with us, his limited appetite for anything that seemed exotic. He had a lovely smile, a quintessentially expansive way with words and flourishes. And yet, the Sanctuary he envisioned, the documentary architecture he put first, could never admit inhabitants who varied in so many ways, not the least of which included religious belief, race or gender identity, from his own essentialist ideas about the good life.

If the midrash opens the door of the Tabernacle to the importance of holy vessels created by human artisans, he slammed it shut on the first floor.

It remains to be seen how we can breathe life back into the Supreme Court during a difficult political season. The art of interpretation requires us to be good subjects, imbued, like Bezalel, with a good eye – but even more so, a willingness to see the design process as something plastic, mutable, engaging. And justice’s cry can only be evinced from a living document.

You can read more on Rabbi Joey's blog, Gal Aynai (Uncover My Eyes) at


Sun, August 9 2020 19 Av 5780