Thursday, February 18, 2016

Supreme Court Justice Scalia Leaves Legacy of Contrarian Co-existence

© 2016 The Wired Word
www.thewiredword.com

Supreme Court Justice Antonin Scalia died last Saturday, February 13, of an apparent heart attack at the age of 79. He is survived by his wife Maureen, nine children and 28 grandchildren.
News of Scalia's death produced a range of reactions, from fond remembrances to reflections from opponents, some of whom remembered him as a friend.
Ruth Bader Ginsburg, fellow Supreme Court judge who was at the other end of the spectrum philosophically, went to the opera with him; they and their families spent holidays and vacations together. An opera Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportionsdebuted in 2015; it featured a duet with a tenor representing Scalia and a soprano representing Ginsburg singing "We are different; we are one."
Ginsburg respected Scalia's wit and trusted him to point out the flaws in her arguments. "I disagreed with most of what he said," she said last year, "but I loved the way he said it."
Former students of his recall his use of the Socratic method in class; he would often introduce a proposition that appeared to be set in stone, not to end discussion but to stimulate thinking. A stalwart conservative, he hired liberal law clerks because he wanted to be challenged and relished debate.
Before Scalia was appointed by President Ronald Reagan in 1986, lawyers normally accepted the idea of "contemporary ratification" as foundational to the practice of constitutional law. That judicial philosophy held that each generation should interpret the Constitution according to its current perspective, culture and needs.
Scalia argued for "original meaning," seeking to understand how reasonable persons would have understood the document at the time it was written. His position appeals to some who believe that a document that merely reflects the whims, views and fads of each passing era can not be a stable foundation upon which to build an enduring society.
At times Scalia's conservatism and original meaning came into conflict. In such cases, after a struggle to reconcile the two, the justice ordinarily chose original meaning over his political leaning, according to Harvard Professor of Law and Leadership, Lawrence Lessig, who was one of the liberal law clerks in Scalia's employ in the 1990s.
Lessig recalled one occasion when Scalia asked him to find out how long a person who had been arrested without a warrant could be held before being presented to a judge at the time of the framing of the constitution. Lessig's research revealed that the individual was to be presented to a judge as quickly as possible, even if it meant getting a judge out of bed. Scalia accepted the answer, even if it wasn't what he hoped to hear, with the comment "I don't believe in an originalism of convenience."
While Lessig wasn't sure that Scalia always succeeded in perfectly prioritizing original meaning, he admired his commitment to principle over politics or personal preference. "But whether perfectly or not," Lessig wrote, "what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right."
William N. Eskridge Jr., Professor of Jurisprudence at Yale Law School, called Scalia "the Supreme Court's Rule of Law Conscience" whose motto might have been: "The text, the whole text and nothing but the text, so help me God!"
Scalia did not see the Constitution as "evolving" or "living" but as static. "I just say, 'Go back to the good, old dead Constitution,'" he told NPR in 2008.
Randy E. Barnett, Legal Theory Professor at Georgetown University Law Center and director of the Georgetown Center for the Constitution wrote of Scalia in USA Today, "despite our disagreements, I always respected him as a jurist who strived, however imperfectly, to put the rule of law ahead of his own political preferences. He was never the right-wing bogeyman his critics made him out to be. I will miss him, but American constitutional law will never forget him."
When Joseph Klock Jr. came before the Supreme Court in 2000, representing Florida Secretary of State Katherine Harris during Bush v. Gore, he mangled the names of two of the jurists. "Mr. Klock, I'm Scalia," the conservative said. "Yes, sir. I remember that. It will be hard to forget," the attorney answered.
Whether you are an admirer of Scalia or not, it will be hard to forget this complicated jurist who significantly impacted the highest court in the land and the way judges interpret constitutional and state law.
More on this story can be found at these links:
The Big Questions
1. When have you cultivated a friendship with someone with whom you had radical differences of opinion? How did that friendship shape you?
2. Would you call yourself more of a "contrarian" or a "co-exister"? What can each type of role contribute to a society? to a church? Do the two types need each other and if so, why?
3. In general, do you prefer a clear-cut, "one-size-fits-all" approach to most situations, or are you more comfortable with a more nuanced approach that accepts some ambiguity?
4. What criteria do we use to judge the appropriateness of an interpretation of a biblical text? How is that similar to or different from the way we might interpret the Constitution?
5. What individual or group have you written off because of significant differences of opinion? What action might God want you to take to open a path to dialogue and improve the relationship?
Confronting the News With Scripture and Hope
Here are some Bible verses to guide your discussion:
Proverbs 17:9-10
One who forgives an affront fosters friendship,
but one who dwells on disputes will alienate a friend.
A rebuke strikes deeper into a discerning person
than a hundred blows into a fool. (No context needed.)
Proverbs 27:5-6
Better is open rebuke than hidden love. Well meant are the wounds a friend inflicts, but profuse are the kisses of an enemy. (No context needed.)
In these wise sayings, a father seeks to guide his son regarding the nature of friendship.
Questions: How easy is it for you to put aside differences you have with an opponent so as to "foster friendship"? Is it more important to you to maintain personal relationships, or to win an argument with another person? How do you usually react when someone criticizes or rebukes you?
Proverbs 27:17
Iron sharpens iron, and one person sharpens the wits of another. (No context needed.)
"From our years together at the D.C. Circuit, we were best buddies," Justice Ginsburg said of Scalia. "We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots -- the 'applesauce' and 'argle bargle'" she continued, "and gave me just what I needed to strengthen the majority opinion."
Questions: Who in your life has been the iron that has sharpened your wits? Why is it important for you to have people in your life who don't just tell you what you want to hear, always agreeing with your point of view? In a world in which technology increasingly tailors our playlist, news articles, friend suggestions and marketing to our personal tastes, how hard is it to gain access to views that challenge your own preconceived notions? What do you intentionally do to open yourself to new ideas and experiences?
Esther 8:7-8, 10-11
Then King Ahasuerus said … to the Jew Mordecai, "You may write as you please with regard to the Jews, in the name of the king, and seal it with the king's ring; for an edict written in the name of the king and sealed with the king's ring cannot be revoked." … [Mordecai] wrote letters in the name of King Ahasuerus, sealed them with the king’s ring, … By these letters the king allowed the Jews who were in every city to assemble and defend their lives. (For context, read 3:8-13 and 8:5-11.)
The book of Esther recounts how Esther, a Jewish orphan, becomes queen in Persia at a time of great upheaval. The prime minister, Haman, objects when Esther's guardian, Mordecai, doesn't pay him sufficient homage, and he seeks revenge not only against his nemesis, but against his entire race, not realizing that Mordecai is related to the queen. In the name of national security and economic enrichment, Haman persuades King Ahasuerus to grant him authority to exterminate the Jews, whom he depicts as enemies of the crown.
When Esther learns of the plot, she risks her life to save her people, revealing her ethnicity to the king and accusing Haman of treachery. The king hangs Haman on the gallows he had built for Mordecai, and gives Mordecai the authority to act as prime minister instead.
But there's a problem. The law Haman had created to annihilate the Jews was a law of the Persians and the Medes which was set in stone and could not be altered or revoked (Esther 1:19 and 3:12). So a new law had to be written that would provide a solution for the Jews while still maintaining the integrity of the law. The right to defend themselves gave them victory over their enemies.
Question: How do you see the Constitution: as a "dead" document that can not be changed except by a ponderous amendment process, whose meaning was set at the time of its inception, or as a "living" organic, fluid document open to various and changing interpretations to suit each generation and cultural shift, or as something in between?
Matthew 5:17, 21-22 
Do not think that I have come to abolish the law or the prophets; I have come not to abolish but to fulfill. … You have heard that it was said to those of ancient times, "You shall not murder"; and "whoever murders shall be liable to judgment." But I say to you that if you are angry with a brother or sister, you will be liable to judgment; and if you insult a brother or sister, you will be liable to the council; and if you say, "You fool," you will be liable to the hell of fire. (For context, read 5:17-44.)
"Judging from the history of scripture, from the writings of the rabbis, and the church fathers, and the scriptures themselves, which carry on a conversation within the pages of our canon (Ezra and Nehemiah want to get rid of the foreign wives, the story of Ruth reminds us that a foreign wife is the direct ancestor of King David and King Solomon)," writes TWW contributor Frank Ramirez, "a willingness to engage in dialog and interpretation is the ancient norm. The rabbis, recording their discussion in the Talmud and Mishnah, were part of a fluid conversation about scripture."
In this section of the Sermon on the Mount, Jesus repeats the phrase several times: "You have heard it said … but I say to you."
Questions: What does Jesus' repetition of this phrase suggest to you about how God speaks to us throughout history? How do you see the Bible: as a document with a singular, literal meaning that cannot be changed, or as a living document whose meaning must be rediscovered and redefined in every generation, or as something else? How much weight should be given to the interpretation of biblical texts given by previous generations, and how much weight should be given to input from the contemporary gathered community trying to apply biblical principles to their own time and culture?
What is the value of trying to see biblical text as the original readers must have seen it? Are the teachings of the Bible timeless commands applying to all cultures and all situations? How does Jesus' statement in verse 17 fit with his repeated declaration, "but I say to you"?
Acts 15:14-18
Simeon has related how God first looked favorably on the Gentiles, to take from among them a people for his name. This agrees with the words of the prophets, as it is written, "After this I will return, and I will rebuild the dwelling of David, which has fallen; from its ruins I will rebuild it, and I will set it up, so that all other peoples may seek the Lord -- even all the Gentiles over whom my name has been called. Thus says the Lord, who has been making these things known from long ago." (For context, read 15:1-18.)
In Antioch, some taught that Gentiles had to be circumcised in order to gain salvation. Paul and Barnabas "had no small dissension and debate with them" (15:2), before the church appointed them and some others to take the question to the apostles and elders in Jerusalem for a decision. They presented their case that Gentiles should be accepted as full-fledged members of the church based on salvation through the work of Christ and nothing more. Peter also spoke in favor of this interpretation of the Gospel.
After listening to oral arguments, James acknowledged contemporary witness testimony that God had already accepted the Gentiles, adding that the prophets also had foretold the Gentiles' coming to faith. The way forward was for the church to accept current practice which agreed with the ancient text delineating the will of God as the prophets presented it in days of old.
Questions: How did the Council at Jerusalem process the question of the inclusion of the Gentiles in the church? What weight was given to the experience of the Antioch Christians? How much weight was given to the words of the prophets? Did the church leaders view the scriptures as a living or a dead document? Explain.
For Further Discussion
1. Respond to this from James Gruetzner, TWW consultant: "Scalia … moved the Federal courts slightly in the direction of defending basic civil rights that are guaranteed by the U.S. Constitution but opposed the establishment of pseudo-constitutional rights -- rights on which the U.S. constitution is silent. This is reflected in many cases: his dissent in Kello, where he sided with people being evicted by the government at the request of a large drug company, in Heller, where he sided with a poor man forced to be defenseless by an uncaring government (see the comments on Queen Esther), his concurrence in Citizens United, where he held that individuals don't lose their freedoms of speech and of the press when they join together in a cooperative organization. He preserved the ideal that, when society changed, the constitution could be amended by a process set in place, and should not be changed willy-nilly by the courts."
2. Comment on this from TWW guest team member Mary Harriet Talbut: "Just because we disagree with each other doesn't mean we shouldn't still treat each other with respect. Think of the loss of true friendship if we reduce each individual to one dimension."
3. Discuss this: Louis A. Ruprecht Jr., William M. Suttles Chair of Religious Studies at Georgia State University, blogged in his Huffington Post article, "The Legacy of Justice Antonin Scalia (1936-2016)": "Many of the cultural attitudes enshrined in the Bill of Rights that was ratified in 1791 are not our attitudes today: Women could not vote; children had no rights to speak of; and most persons of African descent were enslaved, counting as three-fifths of one person for the purposes of assigning congressional representatives to the mainly Southern states. Justice Scalia was well aware of these problems and for this very reason, he referred to his conception of originalism as 'the lesser evil,' not a positive interpretive good. … Justice Scalia freely admitted to the fact of shifting cultural attitudes, many of which were signs of social and cultural advancement. While public flogging was an acceptable punishment in 1791, he admitted, he would not be willing to support such punitive measures today. … He was a lifelong Catholic who reasoned like a Bible-based Protestant. He possessed a lofty sense of tradition, but limited patience for historical and cultural change."
Responding to the News
This might be a good time to consider how open you are to hear a startling message from God when you open the Bible to read. And how willing are you to learn from the body of Christ, to change your point of view, lifestyle and actions from what you have traditionally thought to be true, if that is what God is calling you to do?
Also consider, this comment from TWW team member Charles Alkula: "I always tell teens moving on to college that they should take at least one class a year (or better yet, each semester) from someone who is going to push their buttons."
Closing Prayer
O God, we thank you for placing people in our lives who can sharpen us for your service, even through the friction their presence sometimes creates. Help us to learn what you want to teach us through them, and to seek to build relationships that will honor you. Amen.
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)