Scalia
I had the strangest dream, that Justice Scalia had died. As the dream occurred the night after news reports of his death, I may have been influenced by them. Often my dreams are clairvoyant in that way.
Last June, speaking with beloved Cardinal Burke in Ottawa (our greatest living canon lawyer), I asked for an opinion on Justice Scalia. It turned out the two of them were friends; not surprising. They shared an attachment to the Latin Mass, especially in the Usus Antiquior — Scalia, for instance, though a busy man throughout his life, often driving long distances with his family of a Sunday to attend the nearest available. Too, they shared great respect for legal traditions — both Roman and American — being deeply learned in each, respectively, but neither unfamiliar with the other. His Eminence mentioned, when asked, that they did not agree on everything; that Justice Scalia, while admirably originalist with respect to the USA Constitution, was prone to overlook the larger conditions of its existence.
Not only must we ask, before we start, what the authors of those laws plainly meant by their language, in the context of their era and in the genius of the language itself. To fully understand them, we must hear the resonations of more ancient legal concepts, from the Common Law back to Roman Law; of the philosophers from earlier modern periods, back through thirteenth-century Padua and before; of thinking and “discoveries” in natural law from Christian back through Hebraic, and in the many universal echoes of the same. One must move backwards in order to get a fuller view.
To look on Law in this way is to be more than a scholar, capable of better understanding. It is to be made modest and humble and cautious and conservative and thus: appreciative of distinctions between what positive law can accomplish, and what it cannot. It is to put positive written law in its right place, as the best effort of fallible men; men who may be wise, but may instead be narrow and headstrong; shallow, intemperate, even vicious; and terribly impatient, as if the world relied only on them.
Bad law often triumphs over good, and worse over better interpretations. This is why Justice Scalia so readily told his colleagues on the high Washington bench that they should acknowledge their mistakes, and the mistakes of their predecessors, and explain publicly why they were mistakes. Though confined himself to positive law in a revolutionary tradition, he would instead step beyond it in brilliant analogies and sharp logical thrusts.
Like all the greatest judges of whom I am aware, Scalia’s judgments were readable, his reasonings clear, and his dissents especially exhilarating. No mouse, he did not shy from delicious sarcasm, and hilarious parody of his own colleagues, of whom, currently, at least four are idiots. But this strictly in a professional capacity, where he would have no friends. Socially, among his human fellows, he was thoughtful kind and generous; and even towards the idiots, sunny and forbearing.
The great judges do not tolerate the hairsplit jargon and professorial bafflegab behind which mediocrities hide what is specious. Nor will they descend into the cheap bathos and sentimentality with which the “reformers” play to the mob. They are not seeking personal popularity, but justice in Truth. And where it can be found it requires a trumpet, singing crisp notes.
I loved the man; he was quite lovable. A good Catholic, with an impressive courageous wife, and nine children by what he called “Vatican roulette.” (Thirty-six grandchildren.) All turned out well. One of them is a priest, on whose prayers for his father we may depend. In my dream the good judge was ascending to the Judge of all judges, in Heaven.