When I first read about this feminist strand, it seemed outdated and generally unable to meaningfully contribute to critical theory.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.