Former Scalia Clerk Has a Powerful Message
February 29, 2016 by Ed Brayton
Bruce Hay is a professor at Harvard Law School. He’s a liberal. And he was once a clerk for Justice Antonin Scalia. In a powerful essay at Salon, he talks about how Scalia’s rulings, especially his antipathy for LGBT people, has real-life consequences that the justice himself was completely isolated from.
His own weapon was the poison-barbed word, and the battleground was what he once labeled the Kulturkampf, the culture war. The enemy took many forms. Women’s rights. Racial justice. Economic equality. Environmental protection. The “homosexual agenda,” as he called it. Intellectuals and universities. The questioning of authority and privilege. Ambiguity. Foreignness. Social change. Climate research. The modern world, in all its beauty and complexity and fragility.
Most of all, the enemy was to be found in judges who believe decency and compassion are central to their jobs, not weaknesses to be extinguished. Who refuse to dehumanize people and treat them as pawns in some Manichean struggle of good versus evil, us versus them. Who decline to make their intelligence and verbal gifts into instruments of cruelty and persecution and infinite scorn…
I can attest to the many nice things people have said about the Justice. He was erudite and frighteningly smart. He said what he thought, not what was expedient. He was generous to friends and family. He loved his clerks and helped them get dream jobs. And we returned the favor by not thinking about what we were doing, then or afterward. What I took for the pursuit of reason in those chambers was in fact the manufacture of verbal munitions, to be deployed against civilian populations. From the comfort of our leather chairs, we never saw the victims.
Anyway, about his contribution to physics. I am close to one of the victims of his operation, a transgender woman named Mischa Haider, whom I got to know during the course of her work on a Ph.D. in physics at Harvard. She’s an extraordinary polymath — gifted violinist, writer and novelist; fluent speaker of a half-dozen languages; math genius. And physicist. Her intellect would have made our brilliant Justice want to hide his head in a bag, to borrow his charming words from last year’s marriage equality ruling. Those who have any doubt about trans mothers should meet Mischa’s children.
Since coming out as trans a few years ago, this remarkable woman has suffered a debilitating depression. Partly from the transphobia she encounters daily at the allegedly enlightened Harvard; from the constant stares in public; from the indignity of worrying about things the rest of us take for granted, like walking in the street or using a public bathroom without fear of taunts or violence, or taking her children to the park without fear of being humiliated in front of them. And from the pain of rejection by family and former friends who, despite her prodigious achievements, are somehow ashamed to be associated with her.
Beyond all that, it’s her knowledge of what the “culture war” means for trans women across the country, women who are shunned by their families, who are often unable to get jobs and therefore live in poverty, who face shocking levels of assault and murder (2015 was a record year), who attempt suicide at a rate greater than 40 percent. Who are generally excluded from the protection of antidiscrimination laws. Who, on the contrary, are at this moment the subject of dozens of pending pieces of transphobic legislation around the country, such as bills to stigmatize trans children by forcing them to use separate locker rooms at school or to jail trans women for using public bathrooms that match their identity. The drumbeat of organized hatred, calling to mind yellow stars and separate drinking fountains and worse, makes my friend feel like a nonperson, unwelcome in her own country. All this, for the crime of not matching someone else’s idea of how women are supposed to look…
Scalia passed away in his sleep at a luxurious hunting lodge. He died as he lived, gun at hand, dreaming of killing helpless prey from a position of safety and comfort. May his successor on the Court have a loftier vision of law, and of life.
Hear, hear. Judges should never, ever forget that their rulings are not merely high-minded academic exercises. They affect the lives of real people. When Justice Scalia said that the courts had no obligation to stop an execution merely because there was new evidence that a convicted man was actually innocent of the crime, he let a man get put to death. When he railed against gay people in dissent after dissent, saying that the moral disapproval of homosexuality was more than enough justification for legal discrimination against them, even putting them in prison, he attacked the worth and dignity of millions of people. There is no evidence that this caused him even a millisecond of stress while sitting behind his fine oak desk in his rich leather chair, or while he slept peacefully on one of his many hunting trips and junkets to luxury resorts.
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