Bench Memos

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Re: Andrew Cohen’s Jeremiad


Ed, I don’t know that “jeremiad” is what I’d have called Cohen’s piece.  “Rant” is more like it.  I did watch Peter Robinson’s interview with Justice Scalia, and I kept wondering as I read Cohen what he thinks he saw.  Just once did religion explicitly come up, when Peter asked directly about its influence on Scalia’s jurisprudence.  And Cohen quotes the justice’s answer without grasping its truth: “As far as I know, there is only one element of my faith that has anything to do with my being a judge. . . . ‘Thou shalt not lie.’”  (And how Cohen can turn this into an implied dig by Scalia against his fellow justices is beyond me.)

So where is the “religious fervor” that Cohen claims “dictate[s]” Scalia’s judicial behavior?  There is no evidence of any such fervor–none at all–in the entire 40 minutes or so of conversation between the justice and his interviewer (whose questions are serious ones, and not “giggly” at all, as Cohen claims).

Justice Scalia says over and over in the interview with Peter that he tries his best to do plain old-fashioned lawyer’s work as a judge, examining the text and its history and trying to discern its meaning.  Yet somehow Cohen sees in him someone who is “self-righteous,” who is obsessed with “sin” (a word that, to the best of my recollection, Scalia never uses), who lives in a “cloistered world” and has a “Manichean” viewpoint.

Were I a Freudian in my explanations of others’ little obsessions, I would say that Cohen engages in a kind of projection here.  For it is the judges Cohen likes better–the ones who would ditch the original meaning of the Constitution because its framers were “rich, white, often-slave-owning men”–who must find something to substitute for that original meaning.  And where else will they look than their own self-righteous belief in their own powers of prophecy about what is good and what is evil for American society?  It is they, and Cohen, who need a “religious fervor” about Progress of Manichean proportions, with results to be engineered by judges who don’t have to answer to the American people.  No person with a sanely realistic view of human failings could share Cohen’s confidence that we can sever our obligations to law and to history and produce any good from the ministrations of judicial power.

Oh yes, one more thing: as Ed notes, it is truly ugly how Cohen insinuates that Scalia “wants Jim Crow to come back to America.”  Shades of Ted Kennedy’s infamous mugging of Robert Bork in 1987.

UPDATE: Now I see that Peter Robinson says his own piece over at The Corner.  And well said it is.


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