In his Providence Journal column, today, Edward Fitzpatrick takes on Supreme Court Justice Antonin Scalia because, as the headline says, “Scalia’s vitriol undercuts his influence.”
It’s not enough for Fitzpatrick to highlight Scalia’s colorful language; he’s got to find an objective reason why the justice should tone it down. I’d say Fitzpatrick is playing the quietly liberal journalist’s role in changing America. Objectively speaking, public debate would be healthier if people in that role were more self-aware when it comes to their arguments.
The first step is trying to see things from the other person’s perspective. If you’re Justice Scalia, you believe that the court on which you serve has become a mechanism for rewriting the Constitution on the fly, in a way that has no real basis in law and therefore cannot be consistently applied. This lawlessness, from his point of view, invites (perhaps requires) the people of the United States and their elected representatives to begin ignoring the court. As he put it in his Obergefell v. Hodges dissent:
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. 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” and the States, “even 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.
Fitzpatrick can disagree with that, of course, but if he shared Scalia’s view about the huge importance of this matter, would he still be fretting about whether Scalia’s strong language costs him influence? I tend to doubt it. A search of the Providence Journal archives, for example, produces no instance of Fitzpatrick’s worrying about the effects of Democrat Senator Sheldon Whitehouse’s vitriolic attacks on his fellow Americans, notably his commentary asserting extremism and insinuating racism when it comes to people who were wise enough to oppose ObamaCare. Fitzpatrick also does not appear to have commented on the senator’s zeal for investigating American organizations with which he disagrees because there might be something for which they could be attacked.
Instead, I found a Fitzpatrick column in which the writer trumpets Whitehouse’s role pushing the minority Democrat line on climate change, which ends with Whitehouse’s not-at-all vitriolic quip that “the best news about a Republican Majority in the Senate is that the Republican minority is now gone. They were just a God-awful minority.”
Again, it’s all well and good for Fitzpatrick to do his part to advance progressive causes, but this pose that he’s simply offering his opposition friendly strategic advice gives the game away.
UPDATE (7/2/15 12:55 p.m.):
See here for a partial correction of and some context for the above.