Friday February 26 2016

The death of this American judge matters to us

By LUIS FRANCESCHI
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U.S. Supreme Court Judge Antonin Scalia, affectionately called Nino by his close peers, has died at the age of 79. He left an indelible portrait that many will only come to appreciate with time. He was loved and hated in equal measure.

John Coverdale brings to mind an anecdote narrated by one of Scalia’s court clerks. Scalia had hired a new clerk against the opinion of his workmates not to make him an offer. Shortly after he was hired, the clerk did something awful.

"I can still see Scalia standing in the door of our office gesturing like an orchestra conductor and saying, “Okay. Altogether now: ‘We told you so'", he says. Scalia, he says, was a big enough man to be willing to admit he was wrong.

Chief Justice John Roberts described him as "an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served".

Who was Justice Scalia and why should anyone in Kenya care about the death of a US Supreme Court Judge?

Well, like it or not, the Supreme Court of the United States (or SCOTUS, as they like to call it there) is today one of the most influential courts on earth. It shapes life and policy in the USA, itself a major political player.

Supreme Court judgments resonate around the globe and in many a case they have shaped modern legal thinking. The policy implications that this court has triggered all around the world are worthy of another article.

'BEST BUDDIES'

Nino Scalia was no ordinary US Supreme Court judge. He wrote hundreds of dissenting and concurring opinions. He had an enduring commitment to values, which he majestically articulated, with grace and humour.

His peers say that he was a man who loved his work, his family, his colleagues, his country and he had fun writing his judgments. Scalia had a global perspective and appreciated the wide and far-reaching consequences of not only his decisions but those of the Supreme Court.

Justice Anthony Kennedy had this to say of him:

In years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship, and technical brilliance that Justice Scalia brought to the Court. His insistence on demanding standards shaped the work of the Court in its private discussions, its oral arguments, and its written opinions.

Yet these historic achievements are all the more impressive and compelling because the foundations of Justice Scalia's jurisprudence, the driving force in all his work, and his powerful personality were shaped by an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards. In the fullness of time Justice Scalia's beautiful family will be sustained by the force and dynamism of his intellect and personality.

His friend and colleague, Justice Clarence Thomas gave the following eulogy:

Justice Scalia was a good man; a wonderful husband who loved his wife and his family; a man of strong faith; a towering intellect; a legal giant; and a dear, dear friend. In every case, he gave it his all to get the broad principles and the small details right. It is hard to imagine the Court without my friend. I will miss him beyond all measure.

Justice Ruth Bader Ginsburg termed him “a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.”

This is an interesting statement especially because Justices Ginsberg and Scalia were at both “extremes” of ideology – the former an unbridled liberal and the latter an unstinting conservative. Yet they remained “best buddies”.

“We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots and gave me just what I needed to strengthen the majority opinion,” said Ginsberg.       

BRILLIANCE AND CHARM                                                   

Justice Stephen Breyer called him “a legal titan…[a] man of integrity and wit.’ Justice Samuel Alito stated: "He was a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture.” Justice Sonia Sotomayor and Elena Kegan had similar praise.

The last paragraph of Scalia’s last high-profile case, Obergefell v Hodges, recalled the delicate role that a Judiciary must play in a democracy. He said:

The Judiciary is the ‘least dangerous’ of the federal branches because it has ‘neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.’ With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

Justice Scalia’s funeral homily was given by his son Fr Paul Scalia, a Catholic priest. Fr Paul expressed it as follows:

We have been thrilled to read and hear the many words of praise and admiration for him, his intellect, his writings, his speeches, his influence, and so on. But more important to us—and to him—is that he was Dad. He was the father that God gave us for the great adventure of family life. He loved us, and sought to show that love, and sought to share the blessing of the faith he treasured. And he gave us one another, to have each other for support.

A man of humour, integrity, brilliance, charm who was deeply committed to his country, court, family, faith and values.

Love him or hate him, he has left a legacy that is hard to ignore. Jurists who want to retain honour and integrity may look to him as an unwavering embodiment of those values.

How important it is for a judge to live for his values, and to die leaving a good legacy.

Dr Franceschi is the dean of Strathmore Law [email protected], Twitter:[email protected]

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