Kirby Farrell Ph.D.

A Swim in Denial

Hunting for Death

Justice Scalia and the psychology of law

Posted Feb 15, 2016

It’s fitting that Justice Scalia died after hunting quail at a swanky resort in Texas. He was a son of the middle class, Sicilian-American, fond of shooting quail, the sport of aristocrats celebrated in BBC soaps. Like vice-president Cheney, who shot a bystander while aiming for quail at a Texas ranch (February 11, 2006), Scalia chose a hobby that suited his belief in enforcement of an absolute order.

Cheney, you recall, advocates torture and unlimited warfare as long as Americans win.  Interestingly, in a Constitutional argument, Justice Scalia used the fictional Jack Bauer and the extreme hypothetical  of a bomb in LA to justify torture. "Are you going to convict Jack Bauer?" Justice Scalia challenged. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.”  And added, "So the question is really whether we believe in these absolutes. And ought we believe in these absolutes." This sounds pragmatic and flexible, but it actually served a devious, anecdotal defense of torture. 

Funeral orations are already praising the justice.  But a higher tribute perhaps is to try for truth. Consider his dangerous word “absolutes.” As a Catholic, Scalia often behaved as if law comes from the beyond, from his God, not from the consent of the governed.  In this respect his jurisprudence was characterological, a function of his personality.  In his “originalism,” he sometimes implied that the Founding Fathers one day said “Fiat lux,” like God in Genesis. In a visceral way he denied the evolution of law as evangelicals prefer Creationism to modern biology. This is not to besmirch his wits or his eloquence. He had both. But when his arguments sound tortured, you can sometimes feel his reason wrestling with his gut instincts.

The problem, especially for a judge, is that authoritarian force justifies cruelty. As his friend law professor Thanassi Yiannopoulos says, Scalia “was not the kind of justice you would try to create coalitions with in the court. He never hesitated to be in the minority and sometimes (was) even caustic, very caustic.” To observers, the man's absolutes made him principled. Yet he was famous for his ambiguously witty and daring sarcasm. And sarcasm isn’t logic: sarcasm assaults the identity and status of its victim.  If you are absolute in prejudging victims, it’s akin to shooting quail. Nobody asks Why quail? What authorizes this killing?

Did Justice Scalia prejudge? His appeal to “absolutes” says yes. Judges sentence to death lower class minority men, not the rich. It’s cutural prejudice, but of course it’s psyche too. Justice Scalia, the partisan of “absolutes,” vehemently defended the death penalty. More than once he used two black mentally-disabled half-brothers to rationalize judicial killing—until DNA evidence freed them from death row (September 8, 2014). It turns out that 156 prisoners have been exonerated by DNA evidence since 1973. We can assume they suffered in their years of facing vicious, unjust death.  And the tally doesn’t include those actually killed, such as Cameron Todd Willingham. Since Justice Scalia noted during oral argument in the Shelby County case, that the Voting Rights Act is simply the “perpetuation of racial entitlement”—as if voting is a kind of welfare giveaway for black folks—you might wonder what the old quail hunter thought he was shooting at.  

Here is the tragic flaw in Justice Scalia’s character: he was absolutist about the law’s right to kill offenders, but unable to see that as practiced, in reality, law is wide open to chance, incompetence, abuse, and psychological blindness. Just like all other human activities. Law has an uncanny quality of play about it. The religious convictions of judges and juries are bound to color their judgment yet they’re usually unaccountable. In life or death decisions, we pretend that the judge is free from the psychological conditions that influence the rest of us. Why? Because we want to believe in absolute justice. In public discussions, religious beliefs are euphemized or ignored, and are in any case likely to be complex, nebulous, and to some extent unconscious

At the last minute doomed prisoners such as Troy Davis have appealed for a stay of execution to the Supreme Court, which declined to intervene.  The present court is well known for its political appointments and historically novel decisions.  In 2009, Justice Scalia declared that "this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."  He was making a procedural point, not approving the execution of innocents. Yet this peculiar, if not tortured reasoning is a symptom of problems at work behind the marble facade of the court.

Justice Scalia, for example, used morally charged and unaccountable beliefs to justify capital punishment. Though ostensibly a “strict constructionist” in constitutional law, the Catholic Scalia maintains that

<<for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: ‘Friend, be not afraid of your office. You send me to God’ . . . . For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!  Besides being less likely to regard death as an utterly cataclysmic punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will--the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist--is central to the Christian doctrine of salvation and damnation, heaven and hell. The post–Freudian secularist, on the other hand, is more inclined to think that people are what their history and circumstances have made them, and there is little sense in assigning blame.>> [1]

      “Death is no big deal” unless of course you happen to be wrongly put to death. The justice reduces the bewildering variety of religious experience to “the Christian” and attacks a straw man, the “post-Freudian secularist.” In this rhetoric Christian theology shrinks to a historically shadowy anecdote used by a dramatist in a popular hagiography. He summons Thomas More as he does the propaganda puppet Jack Bauer.  Murder is terrifying—“a horrible act!”—yet in theory Christian murder victims achieve bliss with God, so the rhetoric boxes in deep ambivalence.  Scalia’s Gospel sees no incoherence here and has no room for Christian mercy. 

      The justice is weighing the power to kill accused individuals, but his argument refuses to contemplate actual behavior. Its stereotypes foster psychic impunity by polarizing categories and ignoring the quality of evidence.  At no point does Scalia acknowledge that he is talking about faith in immortality that by definition is beyond any rational standard: and that such faith could be used to legitimize judicial murder or a genocidal crusade.  At the same time he imagines that all murders are deliberate acts, ignoring the roles of panic and accident, not to mention organic dysfunction.  Operating in an anti-psychological intellectual zone, the man never considers that the terror of annihilation might be driving his take-no-prisoners convictions about immortality, or that a judge’s magisterial courage might be at bottom tragic denial.

      Rage for order is both a behavior and an idea about behavior. [2] Justice Scalia, for instance, is attracted to the idea of punishment: “the Christian is also more likely to regard punishment in general as deserved.” He imagines a world cleanly divided between the righteous and the damned; believers and nonbelievers, Christians and “Post-Freudian secularists,” and so on.  In this mindset the deep structure is melodrama.  Differing imaginations don’t overlap, wonder at the infinite varieties of creation, agonize over how to get at the truth, or rue our tragic inadequacy (“God will not permit [temptation] beyond man’s capacity to resist”). Social life is not a matter of trade, negotiation, mutation, and adaptation, but rather an adrenalized struggle to identify and punish, empowered by a conviction of godlike invulnerability. 

      The issue is not whether judgment will exist, but what form will it take?  How much is enough?  Who gets to judge?  On what evidence? And who will police the system? History groans with mass movements and cults that have thrived on predatory righteousness.  The self-intoxicating effects of moral aggression stand out in Philip G. Zimbardo’s famous Stanford Prison Experiment, which had to be halted early when student volunteers in the roles of prison guards began slipping into sadism and the inmates’ depression became self-confirming.  But this was only an experiment, not the living horror of a false conviction and judicial murder--the likely fate of people such as Cameron Todd Willingham, whom Texas officials put to death in 2004 despite demonstrably faulty evidence, a feckless appeals process, and now a brazenly manipulated coverup by a governor who ran for president.

      In his retirement, with moving humility, Justice John Paul Stevens abjured his support for the death penalty decades before.  Reviewing reasons that capital punishment is “unwise and unjustified,” Stevens called attention to the creaturely motives underlying American cultural practices that make the law perverse, quoting the argument of David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010).  Not only is the death penalty not a deterrent to crime, it actually promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” With its demonstrable racial biases and its role in the Republican party’s “southern strategy” as well as in the post-Vietnam “culture wars,” capital punishment has served political ends. [3] But beyond these motives, even beyond revenge, Stevens and Garland see at work “the American fascination with death”--specifically, the “emotional power of imagining killing and death. Garland concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

      From Clarence Darrow to the Justice Project, many have challenged the death penalty, and for good reason.  The Supreme Court will be revisiting capital punishment in the near future. A thorough reexamination of it is long overdue.  The court needs to bring into the light, for all to see, not only the difficulties that undermine capital punishment in action, but also its profoundly fallible roots in mental life. 

      Remember the doctors’ oath:  “Primum Non Nocere.”  First do no harm.

      Good advice for jurists too. And hunters.

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1. ,,

2. For an in-depth analysis of vigilante rage for order and its surprising relation to rampage killing, see The Psychology of Abandon, from Leveller's Press (2015).  <<

3. For a strong summary of the sly political scheming in the south that led to Donald Trump's racist bullying today, see "American Crossroads: Reagan, Trump, and the devil doewn south.