Fraters Libertas

Nothing Compares To You

In discussions about the President's choices for SCOTUS nominees, you often hear that he promised that he would put forward a justice who was "another Scalia" or "another Thomas." I hate to break it to the conservative base, there isn't anyone else out there like Mr. Antonin Scalia, especially when it comes to his writing. Which is a genuine shame.

Here's the man in action from a book review in November's First Things:

But in a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble me--in fact, it pleases me--that giving the words of the Constitution their normal meaning would "expel from the domain of legal issues . . . most of the constitutional disputes that capture our attention," such as "Can a macho military educational institution dedicated to what is euphemistically called the 'adversative' method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending one's life?" If we should read English as English, Smith bemoans, "these questions would seemingly all have received the same answer: 'No law on that one.'"

That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. Smith's response is revealing: "We have not been content with this sort of modesty in our law." The antecedent of the pronoun is unspecified, but I fancy it refers to the legal academic community which establishes the permissible boundaries for Smith's thinking, or at least his writing. Many Americans outside that community yearn for this sort of modesty. Indeed, it was something of an issue in the last election. Smith's complaint is that the judges will not have the degree of power "we" would like them to have. Long live the common law!

And the conclusion:

Steven Smith is a diligent observer of academic correctness. This is evident in the fact that his book has at least as many shes as hes ("So the hiring partner said, 'I'll call you,' did she?")--excluding, of course, those pronouns referring to antecedent proper nouns that are masculine, for which Smith can hardly be blamed. One would never expect Smith to violate the "norm prescribing that religious beliefs are inadmissible in academic explanations." Vining (with appropriate disclaimer) is about as far as one can go without offending the proprieties. Could it be, however, that Smith is inviting, tempting, seducing his fellow academics to consider the theological way out of the quandary--the way that seemed to work for the classical school?

As one reaches the end of the book, after reading Vining's just-short-of-theological imaginings followed by Smith's acknowledgment of "richer realities and greater powers in the universe," he (she?) is sorely tempted to leap up and cry out, "Say it, man! Say it! Say the G-word! G-G-G-G-God!" Surely even academics can accept, as a hypothetical author, a hypothetical God! Textualists, being content with a "modest" judicial role, do not have to call in the Almighty to eliminate their philosophical confusion. But Smith may be right that a more ambitious judicial approach demands what might be called a deus ex hypothesi.

Broke the mold with that one they did. Broke the mold.