Opinionista Elisha Kunene 14 March 2016

When old men die: The transformation lessons of Judge Antonin Scalia

Antonin Scalia was one of the most important judges of our time. He was profoundly intelligent, funny and charismatic — qualities which seldom survive a legal education. But Scalia could not have his cake and eat it; neither can we.

Lawyers Work

A deeply divisive figure on the US Supreme Court bench, Antonin Scalia stood stubbornly at the heart of the battle between legal conservatives and those who sought to use the court as a tool to achieve the liberalisation of American law. During his time on the bench, liberals came to view and paint him as an enemy of Americas persecuted minorities in all their shapes and forms.

His notoriety continued to soar last year when he was in the minority of Obergefell v Hodges, the historic decision in which the Supreme Court overruled state bans on same-sex marriage. On cases concerning affirmative action, abortion, immigration, and countless other human rights issues, he consistently came out, in true conservative fashion, against changing Americas oldest values. Antonin Scalia died one month ago, many people would tell you, on the wrong side of history.

The Onion, a satirical news website, published an article titled Justice Scalia is dead following 30-year battle with social progress.This is a popular view, especially among non-lawyers, in part because of its simplicity. Scalias jurisprudence was rooted in textualism and originalism. Put simply, he believed two things: first, that law should be interpreted by focusing on the plain-language meaning of the words in the text rather than what the court believes was the intention of the people who drafted the law. Second, he believed constitutions should be interpreted by attempting to ascertain what the words meant at the time they were written, rather than regarding constitutions as living documents whose values evolve with the times. Scalia was a scathing critic of those on the Supreme Court bench who sought to rewrite American law in accordance with liberal values, primarily because he felt that 11 unelected lawyers did not have the right and were unqualified to decide what the nations values were. For Scalia, his “battle with social progress” was actually just him doing his job — what he called “lawyers work”.

There are many who doubted the genuineness of his jurisprudential views and believed that he merely used them as an excuse to further his own conservative politics, but I think this line of criticism is the reason many people despised him while failing to adequately critique his jurisprudence. Often we place people in positions of power but then fail to have constructive discussions about how to assess their performance or to reform the systems which regulate their office, because we are preoccupied with speculating on the character and intentions of the leaders themselves. Think about how often we do this with politicians and vice-chancellors.

The week after Scalia died many quoted his words,the judge who is always happy with his findings is a bad judge. People used this in an attempt to redeem the darker parts of his legacy by removing moral accountability from his judgments. Antonin Scalia did not write the US constitution. The average white South African professional gate-keeper did not conceptualise racial capitalism and mould it out of clay. Nevertheless, the less fortunate will remember them both as aggressors and winners in a system which denied countless people their humanity.

Scalia despised the concept of a living constitution because he saw it not as changing the law, but destroying it — removing legal certainty and replacing it with a world where a right did not exist one day and then appeared arbitrarily the next. This fear of uncertainty and artificiality dominates conservative jurisprudential thought. Many professions avoid reform on the basis of the same often unstated and uninterrogated fear. Presumably the reason it is seldom stated is that it risks betraying an uncomfortable idea in any profession — that the values of yesterday may prove equally artificial and arbitrary.

A city on a hill

A few days before Scalias death the South African Constitutional Court had another glorious day presiding over the Nkandla saga and reaffirming the strength of our constitutional democracy. Our judges are not corrupted by the executive, Zapiro should apologise for slandering the Chief Justice! None of our judges are bigots, and while all men are political beasts, the politics on our bench is nuanced and progressive and never prevents justice being served. Remarkable how the same constitutionalism which Scalia used to wage war on progress is our fledgling democracys saving grace. Our Constitutional Court judges are a national treasure.

Our Constitutional Court judges are lucky. For an institution of its importance, the South African Constitutional Court has had the rare fortune of being allowed to build with a clean slate. South Africas constitutional era, at least within the legal world, has been largely defined by an ideological homogeneity enshrined in a relatively uncontroversial and clear constitution. The court has achieved an incredible amount of liberalisation in a short space of time, including banning the death penalty and legalising same-sex marriage and abortion. South Africas post-apartheid freedom celebration has lasted so long that even conservatives have celebrated pretty much anything which represents a clean break with the apartheid era. Most of the people who started the rumour that we have the best constitution in the world are largely motivated by the fact that they were in the room when it was drafted, but our constitutional euphoria is a result of more than legal group-think. We do have a fantastic system. However, much of what has made the constitution so successful is that it has done what most believe the law is meant to do; aggregate and reflect the values of the nation. Its not that its written in a constitution that makes the law just; it is the substance of the law South Africans have embraced. It remains to be seen whether this substance is timeless. Much of the younger generation doesnt seem to think so. Curiously, being on the right side of history has a lot to do with timing.

The adulation heaped on the Constitutional Court is not undeserved, but it sets an unrealistic standard for how institutions can really be representative of the people they serve, because the court has never had to transform. All the transformation at Con Hill is symbolic; Chief Justice Mogoeng Mogoeng never has to worry about Old Fort Prison wardens walking into his chambers and telling him they really disapprove of the direction in which hes taking the place. He didnt grow up wanting to work at Constitutional Hill. Contrast the Con Court narrative with the story of the Supreme Court of Appeal. Bloemfonteins legal culture was so wrapped up in the mire of apartheid authoritarianism that the drafters of the interim constitution denied the court jurisdiction over important administrative law matters. This was overturned by the Constitutional Court ruling that it had been improper to alienate and exclude such a crucial institution, and the issue was remedied in the final constitution. This helped stop the bleeding and preserved a modicum of good faith between the old and new elements of the establishment, but the damage had been done. The court had to work hard to regain the trust and respect of the legal community, the other branches of the state, and the public at large. To the best of my knowledge it has done so commendably, but it will never enjoy the same deification as Constitutional Hill.

Change we need

The manner in which white supremacy reproduces itself in post-colonial institutions is not reliant on evil men wilfully oppressing the weak. Scalia, the SCA bench in the 1980s, and the white lecturer telling you that your people have no history, all may or may not be evil, but they are without question harmful. What they all have in common is belonging to professions and institutional cultures that hoard decades of commitment bias. There is value in what they believe and practise, but when anyone hears the words transformation” or decolonisation” we become incapable of seeing the forest from the trees. Neither transformation nor decolonisation is attainable without a deep and genuine commitment to change, but the extremist and polarised nature of the way in which we discussed Scalias legacy and the events surrounding Shackville suggests we need to get better at distinguishing babies from bathwater. Or at least try harder.

So the questions which stood at the heart of Scalias divisiveness remain pertinent for South Africa to answer today: how do you change a grand old institution without destroying it? There are some among us who believe they have no duty to justify destroying anything they can link, however tenuously, to any form of oppression, symbolic or otherwise. Those people would do well to remember that this is our country too. The burning of the bus at Wits, for one, was a baffling protest act. On the other end of the spectrum, those who demand that people should express their dissent quietly without ever being disruptive or destructive should be less disingenuous (or more honest with themselves) and interrogate their commitment to changing the status quo. Scalia was never prepared to fully defend the old establishment, but he devoted his life and his considerable power to preserving it. Similarly, most institutions claim they are not principally opposed to change, but when they are put under pressure their response is invariably authoritarian and morally arbitrary. UCT never explained to me why I should care more about the burned paintings than the black children assaulted by the police. Max Price went on radio and affirmed that the university would not tolerate criminal activitybut I struggle to see how that is anything more than an appeal to authority. Similarly, I dont understand how UCT is currently impoverished by Rhodesabsence. Lately I cant help but wonder what I would really lose if I didnt have to regurgitate the views of racists, sexists, colonialists, and libertarians in my jurisprudence class.

At the heart of institutional change is the willingness to engage systems that preserve and protect exclusion, to dismantle them and rebuild. Campaigns aimed at demonising individuals and hoping for change through public vilification, on either end, will not do South Africa any more good than they have done US liberals in their Supreme Court of the United States battle; however, Scalias life is also a powerful reminder that it is a mans work that is the defining feature of his legacy, not his heart. Scalias supporters will remember him as a principled man, a great lawyer and a believer in democracy, but the world will also remember him as a tyrant. Many of our most important decolonisation and transformation discussions are only just beginning, yet everyone wants to pretend that conversation has nothing to do with them and their politics, their relationships or their jobs. So many South Africans who are instrumental in guarding and reproducing systems of oppression may have a genuine wish for “progress”, but they remain obstacles to that progress because they are prepared to sacrifice nothing. Scalia could not have his cake and eat it; neither can we. DM


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