Tuesday, March 1, 2016

Justice Scalia & lessons from character theorists

Character theory asserts that women’s values and psychological processes are inherently different from men (see Carol Gilligan’s book In a Different Voice). While men emphasize independence and justice, so the theory goes, women emphasize nurturance, caring, and interdependence. As many critics have already expressed, this ideology pigeonholes women into traditionally feminine, caretaking roles and fails to recognize the diverse experiences of women.

When I first read about this feminist strand, it seemed outdated and generally unable to meaningfully contribute to critical theory. But then Justice Scalia died. And Americans, particularly within the legal community, erupted into a fierce debate about Scalia’s “principled” and often controversial approach to the law. Shockingly, many people in the legal community came out of the woodwork to commend Scalia’s originalist approach on the bench, regardless of his particular positions or their consequences. 

This was readily apparent in the many eulogized tributes to Scalia. In one such homage by the Washington Post, aptly titled “Justice Scalia’s principled fight for representative democracy,” Scalia is quoted:
The non-originalist judge who decides what the modern Constitution ought to mean—perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require—escapes the application of any clear standard, by which we may conclude that he is a charlatan.
The greatest charlatan of all is one who shrouds his own moral determinations in a falsely objective analysis. Originalism is simply another tool for determining what “the modern Constitution ought to mean.” And by denying this truth, originalists cunningly exploit a patriarchal emphasis on objectivity—an exploitation captured by character theory.

Although I don’t celebrate anyone’s death, I also don’t absolve the dead of their sins. Scalia spoke and wrote hateful things. These hateful opinions were often veiled in a moral authority that I abhorred. In reading the eulogized perspectives commending Scalia’s work on the Court, a common narrative developed claiming that regardless of whether or not one agrees with Scalia’s opinions, he should be respected for his unwavering commitment to a particular constitutional philosophy. 

But his opinions weren’t just opinions—his “opinions” helped set the social and political trajectory of our nation, and in this context, how could the results of his opinions play no role in analyzing his legacy? 

That people would be so willing to ignore the impact of Scalia’s decisions, and to latch onto the notion that his approach was objective and just, made me think of character theory’s discussion of patriarchy’s claim to justice. In explaining the different ethics of men and women, character theorists recognize that traditionally feminine ethics have been devalued. Carol Gilligan’s work on character theory claims that women’s morality is fundamentally distinct from men—a claim I personally dispute. But because of patriarchy and the dominance of masculine standards, feminine moral reasoning has been devalued. The result is that our legal system preserves male-defined values—like objectivity—and dismisses traditionally feminine values—like acknowledging interconnectedness and nurturance.

Although character theory has serious flaws, acknowledging some of its conclusions may help move forward our conception of justice and a legal analysis that considers the actual human impact of decisions. Because Scalia’s approach on the bench failed to do so, I will not miss his presence on the Court. I don’t respect Scalia. And I’m not a terrible person for saying so.


Kate said...

I really appreciate your post, and I think it's a refreshing way to look at the legacy left by such a powerful man. Clearly, Scalia was brilliant; but that in no way separates him from other dangerous, vindictive and powerful men in history who have furthered oppression in countless forms. It seems that often the easiest way to discredit someone is to assume they lack intelligence; and on the flip side, that intelligence demands respect. I think this idea ties in with your point, that more objective, masculine qualities are valued in our society. But just because someone is smart shouldn't mean they deserve respect, or that their ideas are worth entertaining. Having the tools to be successful - like drive, intelligence, and even aggression - can't be the only considerations when deciding whose voices are worth listening to.

Liz said...


I do not think that you or anyone else is a terrible person for not really respecting Scalia or his opinions because I also feel the same way. Scalia definitely represents the patriarchal system. What justice meant for Scalia and currently means for all men, perhaps privileged men, is different from what justice means to everyone else. Finally, the notion of "objectivity" in the law that many in the legal field strive for is a masculinized standard that does not take into account other feminine or multicultural views.

As you described, Scalia's opinions "veiled in moral authority" have always made me cringe. In the name of adhering to the text, he was unwavering in adopting a view of the Constitution that made it applicable to modern times, and always argued that it was Congress's role to change the law. But how this played out in practice in his opinions demonstrated the patriarchal and privileged view of white men. I can only hope that Scalia's replacement does not share or exhibit similar views as Scalia.

Sonja said...

The moral outrage that many of my peers have expressed at people saying anything other than kind things about Scalia has very much surprised me. While Scalia may have claimed objectivity, originalist reasoning, and neutrality from the bench, the impact of his decisions had very real consequences for many people. The results of his opinions must play a role in analyzing his legacy. You very eloquently put words to how I have been feeling about Scalia and the majority of responses after his death. Hopefully, he will be remembered by his impact and not merely go down in history as a"brilliant legal mind."

Jenna said...

As stated both in the blog post itself and in previous comments Scalia has been praised for his "objectivity" and his constitutional originalism. However, there are a multitude of opinions and dissents in which I do not believe Scalia can be said to be "objective." Specifically in cases involving legislation on guns, abortion, affirmative action, gay rights, and other such controversial issues, Scalia was NOT objective. He may have tried to hide his reasoning behind supposed constitutional originalism but his personal and subjective feelings manage to slip through and yet he would still attempt to call out the subjective reasoning of the other Supreme Court justices.

Meredith Hankins said...

Thank you Amanda for your post! Like Sonja, I was shocked by the backlash (even from liberal peers) who were "offended" by anyone who criticized Scalia in the aftermath of his death. My response was generally that I would show him the same respect in death that he showed me in his life as an atheist, environmentalist, feminist, bisexual woman (i.e. very little).

I also agree with your premise about character theory and Scalia. By masking his jurisprudence in this aura of "originalism" and the intent of the Founders, his opinions were revered by many (white) (male) legal textualists. But this ignores the fact that Scalia's opinions almost always lacked any acknowledgment of the personal impacts of his reasoning or the Court's decisions. I can only hope that the next Justice, whether male or female, will prove themselves to be more understanding of the different conceptions of moral reasoning that Amanda points out.

RC said...

I'm so glad that so many of us feel this way! Additionally, I feel that differing views of Scalia can also be seen as questions of privilege. I think there is a huge overlap between 1) people who are able to step back and just conceptualize Scalia as "objective" or "principled" and 2) people who are privileged enough to not be negatively impacted by Scalia's decisions and views (particularly those affecting social minorities such as women, LGBT persons, and persons of color, to name a few). I think all is well as long as we're not tone-policing each other; while I understand those who want to respect him in death and honor his memory, I also completely understand that some people hated the guy.